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THE     QUESTION 


BlfiTW!   KN 


NEW  10RH,  DECEMB1-':  ^'a 


MEW   YORK: 

VM.  C.  BRYANT  &  CO.,  PRINTERS,  41NASSATJ  STREET,  COR.  LIBERTY,  j! 

1860. 


GIFT   OF 
JANE  K. FATHER 


THE     QUESTION 


BETWEEN 


tates  mid  f  cm 


NEW  YORK,  DECEMBER  £th,  1860, 


NEW    YORK: 

WM.  C.  BRYANT  &  CO,  PRINTERS,  41  NASSAU  STREET,  COR.  LIBERTY. 

1860. 


THE  QUESTION  BETWEEN  THE  UNITED 
STATES  AND  PERU. 


I 

THE  pending  question  with  Peru  has  given  rise  to 
commentaries  from  the  press  and  from  individuals,  most 
unfavorable  to  the  character  and  reputation  of  that  govern- 
ment. And  it  could  not  be  otherwise  from  the  moment 
that  those  commentaries  are  made,  on  information  obtained 
from  correspondents  who  derive  it  from  parties  directly  or 
indirectly  interested  in  the  successful  issue  of  the  matters  in 
dispute.  The  unsettled  condition  of  the  Spanish  American 
Republics,  and  the  excesses  that,  in  many  instances,  in  the 
exaltations  of  internal  struggles,  have  been  committed,  al- 
though always  promptly,  and  most  willingly  atoned  for, 
have  inclined  more  happy  and  orderly  nations  to  regard 
with  suspicion  all  the  acts  that  those  governments,  in  the 
full  exercise  of  their  rights,  have  been  called  upon  to  en- 
force, specially  against  foreigners,  when  their  laws  have 
been  violated,  their  peace  disturbed,  or  their  interests  in- 
jured. Many  years  of  internal  revolution  and  anarchy, 
rapid  changes  in  governments  and  constitutions,  have  im- 
pressed foreign  nations  with  a  strong  conviction  against  the 
possibility  of  having  peace  and  order  firmly  established  in 
the  republics  of  South  America;  and,  although,  during 

328818 


the  late  years,  sonie  of  those  republics  have  successfully 
struggled  against  that  revolutionary  spirit,  and  overcome 
it  by  force  of  arms,  and  of  public  opinion,  as  in  Peru,  that 
conviction  has  not  been  altered,  and  the  same  ideas  are 
generally  entertained  as  to  the  political  condition  of  those 
countries. 

It  is  starting  from  this  premise  that  foreign  governments 
show,  in  almost  every  instance,  a  decided  tendency  to 
protect  by  their  forces  the  interests  of  their  citizens  when 
impaired  by  the  acts  of  any  party,  be  it  a  legal  government 
or  a  band  of  revolutionists,  without  stopping  to  maturely 
consider  whether  those  acts  were  brought  about  by  guiltiness 
on  the  part  of  their  citizens,  or  by  arbitrary  behavior  on  the 
part  of  the  supposed  offender.  They  generally  presume  that, 
the  country  being  in  revolution,  the  internal  laws  not  being 
respected,  it  is  a  natural  consequence  that  the  rights  of 
neutrals  should  be  violated,  and,  so  disposed,  they  lend  a 
favorable  ear  to  the  partial  and  interested  statement  of  their 
complaining  citizen,  and  enforce  his  claims  with  all  their 
power.  What  is  the  result  of  this  policy  ?  That  some  for- 
eigners, counting  upon  impunity,  become  the  agents  of  the 
revolutionists,  and,  trusting  in  the  protection  of  their  govern- 
ments, embark  in  wild  speculations  to  afford  them  means  to 
carry  on  their  subversive  plans.  And  so  it  is  that  those 
republics,  although  receiving  from  the  foreign  element  the 
means  of  peace  and  prosperity,  by  the  action  of  some  con- 
scientiousless  speculators  receive  also  the  means  of  revolution 
and  disorder. 

It  is  quite  time  that  foreign  governments  adopt  a  line 
of  policy  more  congenial  to  the  actual  condition  of  the 
South  American  republics,  and  that  the  press  of  more 
civilized  countries,  throwing  aside  the  pre-occupations 
arisen  from  an  order  of  things  that  no  longer  exists,  be  the 


medium  of  spreading  the  truth,  be  it  favorable  or  adverse  to 
the  governments  under  which  they  live,  lending  so  its 
powerful  assistance  to  the  cause  of  justice  and  fairness. 

In  the  pending  question  of  the  United  States  with  Peru, 
several  writers  have  suggested  the  expediency  of  using  the 
naval  forces  of  the  Union  to  bring  her  to  terms,  imitating  so 
the  arbitrary  and  despotic  way  of  settling  differences  of  opin- 
ion on  principles  of  international  law,  adopted  by  some  Euro- 
pean nations  in  their  disputes  with  weaker  or  defenseless 
countries.  To  this  we  have  only  to  say,  that  such  a  be- 
havior would  be  unworthy  of  a  great  nation,  and  highly 
disapproved  by  the  majority  of  a  noble  people  that  sees  in 
Peru  a  sister  republic  trying  to  protect  her  rights  against 
the  conspiracy  of  a  few  speculators,  and  seeking  in  that 
people  the  moral  support  required  by  her  cause,  which  is 
the  cause  of  justice  and  of  self-preservation.  The  United 
States  do  not  require  the  employment  of  force  to  obtain 
satisfaction,  when  their  demands  are  grounded  on  justice  ; 
the  history  of  their  relations  with  Peru,  shows  most  undoubt- 
edly the  consideration  and  respect  with  which  all  their 
suggestions  have  always  been  received  and  attended  to  ; 
and  cases  could  be  named  where  differences  between  the 
government  of  Peru  and  the  United  States  Minister  have 
been  submitted  to  the  decision  of  the  United  States  Govern- 
ment, and  the  same  faithfully  executed  by  Peru. 

But  the  pending  question  is  not  one  of  dollars  and  cents, 
as  very  maliciously  has  been  suggested,  but  of  a  principle,  and 
of  such  an  importance  that  its  decision  will  settle,  "  whether 
u  a  party  of  speculators,  by  taking  temporary  possession  of 
:t  the  guano  deposits,  can  despoil  Peru  of  her  property  and 
"  most  valuable  source  of  revenue,  under  the  protection  of 
:t  the  American  flag."  It  is  on  this  point  that  we  wish  to  call 
the  attention  of  the  American  public  and  press  ;  and  to  give 


them  a  thorough  understanding  of  the  question,  we  now 
beg  to  submit  a  brief  statement,  taken  from  the  official 
correspondence,  which  we  will  also  submit  to  the  public's 
appreciation. 


II. 

In  the  latter  part  of  the  year  1856,  the  city  of  Arequipa, 
in  the  south  of  Peru,  raised  the  standard  of  insurrection 
against  the  legal  government,  and  proclaimed  General 
Vivanco,  then  in  exile,  as  head  of  the  intended  revolution. 
A  portion  of  the  Peruvian  navy  joined  in  the  movement. 
A  struggle  commenced  which  ended  with  the  attack  and 
surrender  of  Arequipa,  that  part  of  the  insurgent  navy,  hav- 
ing previously  submitted  to  the  legal  government.  During 
this  contest  some  places  were  entered  by  the  revolutionists, 
and  abandoned  on  appearance  of  the  government  troops, 
but  they  never  occupied  the  capital  of  the  republic,  nor 
was  General  Yivanco  recognized  by  any  member  of  the 
diplomatic  corps.  On  the  contrary,  they  all  remained  in  the 
capital  and  continued  their  relations  with  the  legal  govern- 
ment, which  is  the  same  existing  up  to  the  present  time. 
The  revolutionists,  having  at  their  disposal  a  naval  force, 
took  temporary  possession  of  some  of  the  seaports,  and  guano 
deposits.  The  government  and  congress  declared  pirates  the 
insurgent  ships,  warned  all  nations  and  individuals  against 
making  any  contracts,  purchases  of  guano,  loans,  &c.,  &c., 
to  the  revolutionists,  and  protested  in  the  strongest  terms 
against  their  acts,  saving  the  responsibility  of  the  nation  for 
the  same,  and  making  the  parties  contracting  with  them 


responsible  for  all  damages  arising  to  the  republic  from  those 
contracts,  or  from  any  assistance  given  to  the  revolutionists, 
As  regards  to  the  guano,  there  was  not  only  this  warning 
from  the  government,  but  it  has  been  publicly  known  that 
its  export  and  sale  is  made  under  special  contracts,  approved 
by  congress,  with  several  mercantile  houses  for  the  different 
countries  where  it  is  consumed;  most  of  its  proceeds  are 
applied  to  the  payment  of  foreign  debts,  and  the  govern- 
ment, by  virtue  of  those  contracts,  is  prohibited  from  dis- 
posing of  the  guano  in  any  other  way.  The  regulations  of 
trade,  which  no  government  in  Peru  can  alter  without 
congressional  concurrence  and  sanction,  specially  forbid  the 
exports  of  guano  from  any  other  deposits  but  those  at  the 
Chincha  Islands,  and  by  the  same,  no  ship  can  load  guano 
without  taking,  previously,  a  license  from  the  Custom-House 
at  Callao. 

It  was  under  these  circumstances  that  parties,  in  Iquique 
and  Valparaiso,  contracted  with  supposed  agents  of  the 
revolutionists  the  purchase  of  a  number  of  tons  of  guano, 
and  that  the  American  ships  Georgiana  and  Lizzie  Thomp- 
son, according  to  their  masters'  assurances,  were  chartered 
to  load  at  Playa  de  Lobos  and  Pavellon  de  Pica,  points  in 
the  coast  of  Peru,  not  only  not  opened  to  foreign  trade,  but 
uninhabited,  and  places  from  which  the  exportation  of  guano 
has  always  been  specially  forbidden.  Whilst  loading,  the 
ships  were  taken  by  a  Peruvian  man-of-war  and  brought 
over  to  Callao,  where  a  suit  before  the  proper  courts  of  jus- 
tice, commenced  by  the  government  against  them,  resulted 
in  their  confiscation  in  behalf  of  the  captors,  according  to 
the  laws  of  the  country.  This  decision  was  sustained  not 
only  by  the  revenue  laws,  and  by  the  laws  enacted  by  con- 
gress before  and  at  the  commencement  of  the  revolution, 
but  by  the  principles  of  common  and  international  law. 


The  ships  were  guilty  of  smuggling,  by  breaking  the 
revenue  laws;  of  robbery,  by  making  themselves  parties  to 
an  attempt  to  take  away  the  property  of  the  nation  against 
the  proclamations  of  the  legal  government  and  the  special 
laws  of  congress,  which  are,  unquestionably,  the  proper 
representatives  of  its  owners ;  and  finally,  they  were  guilty 
of  a  breach  of  neutrality,  because,  by  being  the  medium  of 
transporting  that  property,  they  gave  to  the  revolutionists 
the  means  of  raising  funds  to  make  war  against  the  constitu- 
tional government.  It  is  evident  to  any  unprejudiced  mind, 
that  no  reasonable  plea  could  be  made  to  exculpate  these 
ships,  since  the  revenue  laws  of  Peru  are  well  known  to  all 
nations,  and  especially  in  the  United  States,  connected  with 
Peru  in  several  branches  of  trade ;  since  the  proclamations, 
laws,  and  protests  of  the  constitutional  government  and 
congress,  had  been  published  there  as  well  as  here ;  since 
the  regulations  of  the  guano  trade  are  known  everywhere, 
and  particularly  in  the  United  States,  where  they  have  been 
published  by  the  United  States  Government ;  since  the 
United  States  not  recognizing  in  Peru  other  govern- 
ment than  the  one  at  Lima,  their  citizens  owed  submission 
and  respect  to  the  laws  of  that  government,  so  far  as  their 
acts  were  free  and  independent  from  all  coercion,  and  were 
bound  not  to  acknowledge,  from  their  own  will,  any  other 
government  in  Peru ;  and  since,  at  all  events,  they  were 
obliged  to  observe  the  laws  of  neutrals,  by  not  committing, 
voluntarily,  acts  that  not  only  favored  the  cause  of  a 
revolter,  but  were  in  open  violation  of  the  laws  of  the  coun- 
try, previous  to  the  revolution.  The  ships,  therefore,  in 
engaging  in  this  illicit  traffic,  were  induced  to  it,  either  by  a 
profit,  which,  in  the  opinion  of  their  managers  justified  the 
risk  that  they  were  to  run,  or  by  a  confidence  in  the  respon- 
sibility of  the  charterers  to  make  them  good  their  damages, 


9 

in  case  of  failure.  At  any  rate,  it  is  clear  enough  that  they 
could  not  look  to  diplomatic  interference  to  shield  them  in 
such  illegal  pursuits,  because,  from  the  moment  that  they 
contracted  in  collusion  with  authorities  not  recognized  by 
their  own  government,  and  violating  the  special  provisions 
of  the  laws  and  regulations  of  trade  which  governed  the 
traffic  between  Peru  and  the  United  States,  they  could  have 
no  reason  to  anticipate  a  protection  against  the  penalties 
to  which  they  made  themselves  amenable  by  their  free  and 
voluntary  acts. 


III. 


The  United  States  Minister  in  Peru,  in  defence  of  the 
masters  of  the  Georgiana  and  Lizzie  Thompson,  addressed  a 
communication  to  the  Peruvian  Government  for  the  purpose 
of  proving — 

1st.  That  neither  the  vessels  nor  their  captains  had  partici- 
pated in  any  criminal  or  scandalous  contraband ;  and, 

2d.  That  the  arrest  of  the  vessels  and  of  their  officers  was 
not  in  virtue  of  a  perfect  right. 


The  Minister  of  Foreign  Relations  vindicated  the  rights  of 
Peru,  and  victoriously  showed  the  inconsistency  of  Mr.  Clay's 
arguments.  It  is  indeed  very  remarkable  what  illogical  as 
well  as  undiplomatic  style  of  argument,  is  adopted  by  that 
gentleman  to  arrive  at  a  conclusion  exactly  opposite  to  what 
ought  to  be  expected  from  the  plain  laws  of  common  sense, 
2 


10 


Mr.  Clay  begins  by  acknowledging  u  that  the  great  principle 
"  upon  which  all  republican  institutions  are  grounded  is,  that 
u  all  power  resides  in  the  people  and  emanates  from  the 
u  people,  which  appoints  or  selects  the  executive  portion  of 
"  the  government.  That  popular  suffrage  is  the  regular  and 
"  constitutional  way  of  expressing  this  selection,  but  that, 
"  unfortunately,  in  Peru  the  changes  that  have  occurred  in 
"  her  administration  have  been  brought  about  by  a  revolu- 
u  tion.  This  revolution  has  commenced,  almost  in  every 
u  instance,  by  an  armed  insurrection,  whose  chief,  after 
"  having  secured  the  assistance  of  a  number  of  partisans,  has 
"  proclaimed  himself,  or  been  proclaimed  by  them  President 
"  '  ad  interim,"1  has  appointed  a  cabinet,  given  decrees,  and 
"  exercised  other  acts  of  executive  power.  That  the  neces- 
"  sary  result  of  these  acts  has  been  a  civil  warv  during  which 
u  the  revolutionists  have  not  ^hesitated  in  appropriating  to 
"  themselves  the  national  property  to  maintain  their  cause, 
"  and  that  the  party  of  Vivanco  had  followed  the  same  steps 
u  during  the  then  actual  revolution." 

Professing^  as  we  do,  the  same  principles  with  Mr.  Clay  as 
regards  to  popular  sovereignty,  and  believing  that  all  power 
emanates  from  the  people,  we  lament  with  him  the  unfortu- 
nate condition  of  some  of  the  Hispano-American  Republics, 
which  are  yet  struggling  to  emancipate  themselves  from  the 
yoke  of  bastardly  ambitions,  and  from  the  turbulent  spirit  that 
devours  their  vitality.  To  consolidate  peace  and  order,  and 
promote  prosperity  in  those  unhappy  countries,  they  look  to 
the  moral  support  and  friendly  advice  of  foreign  nations,  and 
especially  to  the  United  States,  who,  having  shown  to  them 
the  way  towards  independence,  and  impressed  them  with  love 
and  enthusiasm  for  democratic  institutions,  have  naturally  be- 
come their  allies  and  protectors.  Better  prepared,  by  edu- 
cation, internal  prosperity,  and  municipal  institutions,  for 


11 

self-government   than  Hispano-America,  the  United  States 
consolidated  their   independence,   and   national  prosperity, 
without  the  internal  struggles  that  those  colonies  had  to  over- 
come ;  but,  in  their  misfortunes,  they  deserve  sympathy  and 
consideration  because  their  struggles  are  for  the  consolida- 
tion  of  republican  institutions,    against   theocratical    influ- 
ences ;  of  popular  rights,  against  military  despotism ;  of  con- 
stitutional liberty,  against  fanatical  oppression.  Has  Mr.  Clay 
forgotten  the  causes  that  brought  about  the  popular  insur- 
rection that  gave  birth  to  the  present  government  of  Peru  ? 
The  abolition   of  slavery,    the   extinction   of  the   ominous 
Indian  tribute,  the  practical  exertion  of  municipal  rights,  the 
reductions  in  the  tariff,   the   extended  facilities  to  foreign 
trade,  and  the  constitution  of  1856,  are  the  most  prominent 
fruits  of  this  administration.     The  vote  of  the  people  ap- 
pointed the  National  Convention  that  framed  the  constitu- 
tion, and  the  same  vote  elected,  by  a  great  majority,  the 
actual   President   of  Peru.     Can  this   be  called  a  self-pro- 
claimed President,  or  a  chief  appointed  by  a  number  of  his 
armed  partisans?     Certainly  not.     If,   "all  power  resides  in 
the  people,  and  emanates  from  the  people,"  no  power  is  more 
legal,    nor   appointment   more   in    conformity   with    "  the 
great  principle  upon  which  all  republican  institutions  are 
grounded,"  than  that  exercised  by,  and  conferred  upon  the 
present  Government  of  Peru. 

Let  us  examine  now  the  relative  position  occupied  by 
Vivanco's  party. 


IV. 


The  constitution  of  1856  destroyed  the  absurd  privileges 
given  to  the  ecclesiastical  and  military  classes,  under  the 
name  of  fueros,  submitted  them  to  the  common  law,  and  re- 
quired from  the  clergy  an  oath  of  allegiance  to  the  laws  of 
the  country.  These  classes,  wounded  in  their  privileges, 
sought  for  the  means  of  pulling  down  the  government 
through  "an  armed  insurrection,"  but  not  finding  them 
neither  in  the  regular  army,  nor  among  the  populations  of 
the  capital  and  other  places,  directed  their  labors  to  Are- 
quipa,  a  city  where  the  lower  class  is  numerous  and  excit- 
able, and  somewhat  fanatical.  General  Yivanco,  then  in 
exile,  has  always  been  distinguished  by  his  despotical  polit- 
ical ideas ;  his  principles  of  government  are  reduced  to  the 
theories  of  "  1'Etat  c'est  moi ;"  and,  impressed  with  a  deep 
conviction  of  the  purity  of  his  intentions,  as  well  as  of  the 
soundness  of  his  judgment,  he  does  not  acknowledge  in  the 
nation  more  rights  than  what  he  may  be  willing  to  allow, 
free  from  all  legal  control,  and  requires  implicit  and  passive 
obedience  from  all  to  his  commands.  Like  all  despots,  he 
caresses  the  clergy,  seeing  in  their  influence  a  medium  of 
political  abatement,  and  the  clergy,  very  properly,  elected 
him  for  chief  of  the  insurrection.  Arequipa  revolted  and 
proclaimed  Vivanco,  and  a  part  of  the  navy  followed,  moved 
by  causes  that  it  is  better  not  to  expose. 

No  other  town,  no  city,  joined  in  this  movement ;  without 
means  of  resistance,  many  of  them  submitted,  when  the  re- 
volters  entered  them,  but  immediately  returned  to  legal 
obedience  when  evacuated.  Others,  like  Piura,  and  Callao, 
offered  a  resistance  worthy  of  the  cause  they  defended,  and 


13 

all  contributed  to  restore  order  and  conquer  the  insurrection. 
What  principle  was  then  sustained  or  invoked  by  Yivanco  ? 
None.  Excited  and  invoked  by  the  privileges  of  one  class, 
his  flag  was  his  will,  his  programme  was  his  personal  eleva- 
tion ;  his  dominion  was  limited  to  the  actual  occupation  of 
his  forces,  and  his  authority  was  acknowledged  only  by  his 
accomplices.  And  this  is  exactly  the  position  given  to  him 
by  Mr.  Clay  in  the  above  cited  words.  Can  the  law  of  na- 
tions invest  a  man  so  situated  with  the  rights  of  a  belliger- 
ent ?  For  the  sake  of  humanity  and  of  every  principle  of 
common  sense,  we  say  no !  ten  times  no !  Yivanco  was  the 
head  of  a  mutiny.  Whether  it  lasted  two  years,  or  two 
hours,  the  time  is  immaterial ;  it  does  not  alter  the  principle 
nor  affect,  in  the  least,  the  respective  position  of  the  parties. 
Peru  had  not  lost  her  place  in  the  catalogue  of  nations,  nor 
her  rights  as  such,  and  it  is  the  most  absurd  of  human  inven- 
tions to  pretend  to  divest  the  legal  possessor  of  those  rights, 
to  invest  them,  on  the  head  of  a  band  of  marauders. 

It  is  true  that  many  of  the  governments  that  'have  existed  in 
Peru  have  had  their  origin  in  an  armed  insurrection,  but  the 
fact  that  they  have  become  governments,  proves  sufficiently, 
by  itself,  that  they  had  the  assistance  and  co-operation  of  the 
people,  as  they  have,  without  other  means  but  the  popular 
support,  overthrown  a  government  abundantly  supplied  with 
all  the  elements  required  to  fight  successfully.  Revise  the 
history  of  the  last  twenty  years,  and  the  truth  appears  more 
clearly.  Torrico's  government  overthrown  by  Vidal,  Yivanco 
by  Castilla,  Echenique  by  Castilla.  And  why  this,  when 
those  governments  had  the  regular  army  and  the  navy,  and 
all  the  property  of  the  nation,  including  the  guano  deposits,  at 
their  command?  Because  Torrico  and  Yivanco  represented 
despotism  and  force,  whereas  Vidal  and  Castilla  fought  for 
the  constitution  and  the  laws,  for  the  rights  of  the  people, 


14 

and  universal  suffrage.  And  it  is  for  this  very  same  reason, 
that  now,  when  the  legal  government,  by  the  most  con- 
temptible treachery,  lost  the  guano  deposits  and  other  means 
of  revenue,  when  all  of  them  passed  over  to  the  arbitrary 
control  of  the  insurgent  Yivanco,  and  when  this  found  in  a 
few  strangers  co-operation,  and  help  denied  to  the  former, 
it  is,  we  say,  for  that  reason  that  the  insurgents  were  sub- 
dued, and  the  legal  government  re-affirmed,  because  its 
cause  was  the  cause  of  the  people. 

The  speculators,  or  their  advisers,  ought  to  have  been  gov- 
erned by  this  principle,  viz. :  "  That  in  Peru,  when  a  revolution 
uis  made  against  oppression,  and  in  favor  of  the  true  interests 
"  of  the  people,  that  revolution  is  most  undoubtedly  bound 
"  to  triumph,  no  matter  what  resistance  may  be  offered  to 
u  it ;  and  vice  versa,  that  all  revolutions  purporting  to  de- 
"  stroy  the  constitutional  rights  of  the  people  must  neces- 
"  sarily  succumb  irrespective  of  the  means  that  may  muster 
u  to  aid  its  ends."  It  is  no  wonder  that  persons  looking  only 
at  the  surface  of  events,  should  think  that  all  revolutions  are 
bound  to  succeed,  because  such  has  been  the  result  in  a  ma- 
jority of  cases;  but  if  they  stop  to  inquire  into  the  causes 
for  these  successes,  they  will  find  them  in  the  popular  rights 
that  they  have  proclaimed,  when  the  people  has  been  most 
oppressed  by  those  self-proclaimed  presidents. 


15 


V. 


From  what  has  been  stated,  it  is  plain  that  the  govern- 
ment of  General  Castilla  exercised  all  the  incumbencies  of  a 
national  government  in  its  relations  with  foreign  countries; 
not  in  virtue  of  an  acknowledgment  from  them  as  govern- 
ment de  facto,  and  as  a  matter  of  expediency,  but  in  virtue 
of  its  legality  as  the  constitutional  government  of  Peru, 
which  had  the  right  to  be  recognized  by  the  powers  that 
formerly  recognized  and  promised  to  respect  the  independ- 
ence of  Peru,  as  a  sovereign  nation.  None  of  these  powers 
had  then  the  right  of  revoking  their  act  of  recognition  to 
that  government,  nor  to  change  it,  while  it  existed,  to  another 
party.  Under  such  circumstances,  a  revolution,  no  matter 
to  what  extent  it  spread,  nor  the  principles  that  it  pro- 
claimed, could  not  be  officially  regarded  by  foreign  nations, 
but  as  an  internal  commotion,  not  affecting  in  the  least  their 
relations,  nor  those  of  their  citizens,  with  Peru,  because  this 
country  was,  "  so  far  as  respects  the  effects  of  its  political 
"  condition  upon  its  intercourse  with  foreign  powers,  in  a 
"  state  of  peace."  Nor  could  it  be  otherwise,  because,  if 
governments  constituted  in  a  legal  manner  are  responsible 
to  foreign  nations  for  all  trespasses  upon  the  rights  and  in- 
terests of  their  subjects,  no  matter  whether  the  perpetrator 
is  a  legal  authority  or  the  deputy  of  an  usurper,  this  respon- 
sibility is  mainly  based  on  the  impossibility  of  the  foreign 
nation,  in  virtue  of  its  recognition  of  the  authority  of  the 
government,  to  treat  with  a  revolter,  or  punish  him,  exerting 
an  act  of  internal  jurisdiction.  As  Mr.  Clay  very  properly 
remarks,  a  chief,  "with  the  assistance  of  a  number  of  parti- 
"  sans,  exercises  acts  o  executive  power"  although  not  in 


16 


possession  of  the  government,  and,  on  the  contrary,  op- 
posed by  it  and  by  a  majority  of  the  people.  But  this 
chief  is  a  revolter,  his  acts  are  repudiated  by  the  nation, 
and,  if  defeated,  is  irresponsible  for  damages  caused  under 
his  authority.  For  the  very  reason  that  he  is  chief  of  a 
number  of  partisans,  he  is  not  recognized  by  foreign 
nations,  because  such  a  recognition  would  entirely  save  the 
responsibility  of  the  nation  for  his  acts,  and,  failing  in  the 
ends  of  his  revolt,  the  injured  interests  would  be  left  unin- 
demnified ;  whereas,  on  the  contrary,  if  he  succeeds,  he  is 
bound  to  fulfill  the  obligations  incurred  by  a  regularly  con- 
stituted government,  according  to  the  law  of  nations.  The 
argument,  then,  of  Mr.  Clay  is  contra  producentem,  because  if 
a  chief  of  rebels  lacks  of  competent  authority  to  treat  in  the 
name  of  the  nation  "  according  to  the  principles  on  which 
"republican  institutions  are  grounded;"  if  he  can  contract 
no  obligations  for  want  of  the  proper  responsibility,  it  is  a 
natural  consequence  that  he  cannot  confer  rights,  nor  effect 
acts  that  involve  a  delegation  of  popular  sovereignty  which 
he  does  not  possess,  because  "his  authority  does  not  eman- 
"  ate  from  the  people." 


17 


VI. 


It  has  been  argued  in  the  official  correspondence  on  this 
subject,  whether  Peru  was  in  a  state  of  civil  war  during  the 
mutiny  of  the  city  of  Arequipa,  and  two  or  three  ships  of 
the  navy.  In  the  language  of  Attorney-General  Black, 
u  when  the  people  of  a  republic  are  divided  into  two  hostile 
u  parties,  who  take  up  arms  and  oppose  one  another  by  mili- 
tary force,  this  is  civil  war."  If  this  principle  is  correct, 
we  can  well  assure  that  there  was  no  civil  war  in  Peru,  be- 
cause the  people  were  not  divided  into  two  hostile  parties, 
nor  had  taken  up  arms  to  oppose  one  another. 

The  legal  government  was  recognized  and  obeyed  through 
all  the  republic,  except  in  the  places  occupied  by  armed 
bands  of  Vivanco.  They  took  up  arms  against  them  in 
every  instance,  and  it  was  the  gallant  people  of  Callao  that 
defeated,  by  themselves,  the  numerous  forces  of  that  chief 
who  attempted  to  take  that  town,  anticipating  an  easy  vic- 
tory. All  the  cities  in  the  interior,  in  the  north  and  centre 
of  the  republic,  where  there  were  no  armed  forces,  re- 
mained faithful  to  the  legal  government,  and  armed  them- 
selves to  protect  their  rights.  There  was  no  division  in  the 
people  when  free  from  coercion,  and,  therefore,  there  was 
no  civil  war.  A  foreign  nation  could  not  legally  recognize 
the  condition  of  Peru  as  in  a  state  of  civil  war,  because  there 
was  no  identity  of  positions,  nor  circumstances,  between  a 
legal  government  and  a  number  of  armed  partisans  obeying 
the  discretional  authority  of  their  chief;  because  the  autho- 
rity of  this  chief  was  exclusively  circumscribed  to  the 
ground  occupied  by  his  armed  bands ;  because  the  territory 
over  which  he  pretended  to  exercise  jurisdiction  was  so 

small,  both  in  extent  and  population,  as  compared  with  the 
3 


18 


population  and  extent  of  Peru,  that  there  was  not  the  least 
shadow  of  possibility  of  becoming  an  independent  govern- 
ment; because  the  chief  himself  did  not  proclaim  more 
principle  than  self-elevation ;  and,  finally,  because  foreign 
nations,  by  a  practice  of  forty  years,  have  themselves  laid 
down  the  principle  of  not  acknowledging  the  effect  of  inter- 
nal dissensions  in  cases  of  reclamations  and  indemnities  of 
their  citizens.  To  assume  that  foreign  governments  have 
the  right  of  declaring  a  country  in  a  state  of  civil  war,  and 
acknowledge  two  governments  in  it,  without  being  subject 
to  any  principle  of  international  law  previously  laid  down 
and  generally  consented  to,  without  establishing  any  rules 
marking  the  difference  between  a  civil  war,  a  military  insur- 
rection, a  mutiny,  or  a  revolt,  and  without  marking  the 
limits  of  rights  and  obligations  of  the  internal  belligerents, 
which  could  not  be  absolutely  the  same  as  those  of  belliger- 
ent nations  inter  se,  is  an  absurd  pretension  resisted  by 
reason,  and  by  the  most  common  suggestions  of  common 
sense.  Better  have  the  merit  of  frankness,  and  say  to  the 
world,  u  With  the  weak  I  will  enforce  their  obligations  with- 
"  out  respecting  their  rights."  Such  a  position  is  untenable, 
and  it  is  not  in  the  present  age  when  we  ought  to  expect  a 
sanction  to  the  doctrine  of  force  against  justice, 


19 


VII. 

But  if  it  is  unlawful  for  a  government  to  make  indiscrimin- 
ately such  a  declaration,  and  which,  by  the  bye,  is  the  only 
one  that  would  authorize  its  subjects  to  assume  the  rights  of 
neutrals ;  how  unreasonable  would  it  not  be  to  allow  such  a 
privilege  to  private  individuals  ?  Are  the  rights  of  nations, 
the  worth  of  treaties,  and  the  friendly  relations  between 
different  countries,  to  be  left  at  the  mercy  of  the  interests  of 
a  number  of  speculators  ?  Can  irresponsible ,  persons,  unac- 
quainted with  the  most  common  principles  of  international 
law,  decide,  by  themselves,  whether  their  governments  are 
to  recognize  one,  two,  or  more  executive  powers  in  another 
country  ?  Can  they  compel  their  governments  to  remodel 
the  law  of  nations  so  as  to  suit  their  speculations  ?  Can  they 
act  as  supreme  judges  in  the  internal  dissensions  of  a  foreign 
country  ?  Can  they  decide,  by  themselves,  taking  an  antag- 
onistic position  to  their  own  governments,  what  is  the  legal 
government  of  a  foreign  nation,  and  oblige  theirs  to  abide 
by  their  decision  !  Can  they  authoritatively  say,  when  it 
shall  be  lawful  for  them  to  disregard  the  laws  of  a  govern- 
ment recognized  by  theirs,  and/reeZy,  and  of  their  own  will, 
act  in  direct  contravention  to  them  ?  Let  the  American 
people  answer  to  these  questions.  The  President  of  the 
United  States,  his  Attorney-General,  and  his  Minister  in  Peru, 
by  defending  and  protecting  the  acts  of  the  masters  of  the 
Georgiana  and  Lizzie  Thompson,  imply  a  justification  of  the 
assumption  of  these  unwarrantable  authorities,  because  these 
masters  knew  that  Ilivas  was  acting  under  the  name  of  a 
revolter,  and  they  fredy  and  voluntarily  acknowledged  him 
as  a  legal  authority  ;  they  knew  that  the  laws  of  the  country 
forbade  the  export  of  guano  from  all  places  except  the  Chin- 


20 


cha  Islands,  and  freely  and  voluntarily  undertook  to  export 
it  from  Pavellon  de  Pica  and  Punta  de  Lobos ;  they  knew 
that  these  places,  by  the  regulations  of  trade,  were  closed  to 
foreign  commerce,  and  freely  and  voluntarily  went  to  them 
with  their  ships  ;  they  knew  that  the  Custom-House  at  Cal- 
lao  was,  by  law,  the  only  power  authorized  to  grant  permits 
to  load  guano,  and  freely  and  voluntarily  took  one  from  a 
party  in  Iquique  that  had  no  authority  to  grant  them ;  they 
knew  that  the  exportation  of  guano  could  be  carried  on  by 
law,  only  by  the  vessels  under  contract  with  the  government 
or  its  agents,  and  freely  and  voluntarily  made  contracts  with 
other  parties;  they  knew  that  the  legal  government,  the 
government  recognized  by  the  United  States,  was  at  Lima, 
and  disobeyed  by  the  revolters  of  Iquique,  and  they  freely 
and  voluntarily  assumed  Yivanco  to  be  the  supreme  govern- 
ment of  Peru ;  they  knew  that  the  exports  of  guano  for  Great 
Britain  could  not  be  made  but  by  the  legal  agents  of  the  gov- 
ernment, and  freely  and  voluntarily  bound  themselves  to  take 
it  out  for  other  parties ;  they  knew  that  this  guano  to  be 
taken  by  them  was  sold  by  a  party  that  had  no  legal 
authority  to  sell,  and  that  the  value  of  the  sale  was  to  be 
received  by  the  revolters,  and  freely  and  voluntarily  con- 
tributed to  carry  on  this  spoliation ;  and  finally,  they  knew 
that  the  legal  government  had  declared  its  decision  to  enforce 
the  regulations  and  laws  by  which  their  ships  were  subject 
to  confiscation,  and  their  persons  to  punishment,  and  freely 
and  voluntarily  exposed  themselves  to  these  penalties. 

In  the  face  of  these  facts,  and  of  the  force  of  the  principles 
laid  down,  can  it  be  satisfactorily  maintained,  that  "the 
u  ships  had  not  participated  in  any  criminal  contraband,  and 
"  that  their  arrest,  and  that  of  their  officers,  was  not  in  virtue 
"  of  a  perfect  right  ?" 


VIII. 


The  supposition  that  Peru  was  in  a  state  of  civil  war, 
which  gives  to  the  contending  parties  the  rights  of  bellig- 
erents, and  to  foreign  nations  the  rights  of  neutrals,  does  not 
justify  the  position  taken  by  the  present  government  of  the 
United  States  in  the  case  in  dispute.  Setting  aside  the  ne- 
cessity of  a  previous  recognition  by  this  government  to 
enable  its  subjects  to  claim  the  rights  of  neutrals — a  necessity 
very  ably  demonstrated  in  the  official  correspondence — it  is  a 
well-known  principle  of  international  law,  that-  those  rights 
are  violated  when  neutrals  aiford  to  the  enemy  the  means  for 
carrying  on  the  war,  and  also  when  they  undertake  to  carry 
on  a  commerce  forbidden  in  time  of  peace.  The  masters  of 
the  ships  in  question,  by  contracting  to  convey  the  guano 
to  places  where  it  was  converted  into  money,  afforded  to  the 
enemy  the  means  of  carrying  on  the  war.  Whether  the  con- 
veyance w^as  made  on  account,  as  some  of  the  crew  stated,  of 
the  Peruvian  Government  de  facto,  or  on  account  of  parties 
that  purchased  from  it,  it  is  entirely  immaterial.  Guano,  the 
property  of  the  nation,  is  comparatively  valueless  without 
the  means  of  transport,  and  whilst  in  the  deposits  could  not 
aiford  any  funds  to  the  possessor  of  it.  By  removing  it  from 
there,  and  taking  it  out  from  a  territory  that  was  liable  to  fall 
into  the  hands  of  the  other  belligerent  at  any  moment,  the 
ships  gave  to  Vivanco  resources  that  he  could  not  have  ob- 
tained otherwise,  Guano,  in  the  revenue  sources  of  Peru, 
occupies  the  same  place  as  the  gold  in  the  public  treasury  of 
the  United  States,  with  the  only  difference  that  this,  once  re- 
moved by  a  belligerent,  could  not  be  identified,  whereas  the 
other  could,  at  any  time.  But  neither  the  one  nor  the  other 
can  be  considered,  in  any  case,  in  a  war,  as  neutrals'  property, 


and  less  so  when  caught  in  the  act  of  shipment  within  the 
national  jurisdiction  and  properly  identified.  We  have  not 
seen  any  writer  on  public  law  claiming  the  well-known  prop- 
erty of  a  belligerent  as  neutral  property,  and  giving  to  it 
the  protection  of  the  rights  of  neutrals. 

It  has  not  been  uniformly  decided  which  are  the 
articles  to  be  properly  considered  as  contraband  of  war; 
in  some  cases  its  classification  has  been  made  by  treaties 
between  nations  in  time  of  peace  ;  but  in  most  of  them 
the  belligerent  powers  have  published  resolutions  stat- 
ing which  are  the  articles  or  merchandise  that  they 
will  seize  under  neutral  flags,  as  such  contraband.  That 
articles  declared  contraband  of  war,  and  not  objected  to  as 
such  by  neutral  powers,  are  subject  to  seizure,  is  a  principle 
admitted  by  all  nations,  as  also  the  confiscation  of  the  ships 
carrying  them  has  been  very  generally  practiced.  The  legal 
government  of  Peru  published,  on  the  1st  of  April,  1857,  a 
decree  approved  by  the  national  convention,  one  of  the  pro- 
visions of  which  was,  that  u  all  guano  exported,  or  thereafter 
"to  be  exported,  from  the  Chincha  Islands,  or  from  any  other 
'•  deposit  of  Peru,  by  disturbers  of  the  public  order,  or  by 
u  virtue  of  contracts  made  with  them  or  with  their  agents, 
"  shall  at  all  times  be  subject  to  be  claimed  back  as  stolen 
"national  property,  and  the  parties  responsible  therefor  shall 
"be  civilly  and  criminally  prosecuted  in  conformity  with 
"  law."  The  government  had  already,  in  February  of  the 
same  year,  published  all  the  laws  and  regulations  regarding 
the  exports,  &c.,  &c.,  of  guano,  and  the  penalties  incurred  by 
those  violating  them ;  and  on  the  28th,  it  passed  a  circular 
to  the  diplomatic  and  consular  agents  of  the  republic 
abroad,  ordering  a  publication  of  those  laws  "  to  avoid  all 
pretext  that  the  contrabandists  might  allege."  These  publi- 
cations were  made  in  France,  England,  Belgium,  Spain, 


United  States,  and  Hispano American  Republics.  The  Min- 
ister for  Foreign  Affairs  intimated  also  to  the  diplomatic 
corps  at  Lima,  the  government's  decision  "to  persecute  and 
"seize"  the  vessels  making  contraband  of  guano,  without 
receiving  the  slightest  objection  from  them  to  this  deter- 
mination. These  notifications  were  made  more  than  ten 
months  before  the  capture  of  the  ships  Georgiana  and  Lizzie 
Thompson,  and  time  enough  had  elapsed  to  ascertain  the 
objections  that  the  position  assumed  by  the  Government  of 
Lima  might  have  met  with  from  foreign  powers.  None  were 
made,  and  in  fact  none  could  be ;  because  that  government, 
be  it  considered  as  the  only  legal  and  recognized  Government 
of  Peru,  or  as  a  belligerent,  had  the  undisputed  right,  based 
on  the  laws  of  the  country  and  on  international  law,  to  seize 
and  capture  foreign  vessels  laden  with  an  article  that  had 
been  declared  to  be  contraband,  and  which  declaration  had 
not  been  objected  to  by  the  neutrals.  But  even  in  the  sup- 
position that  such  declarations  had  not  been  made  by  the 
Government  of  Lima,  and  that  the  United  States  were  not 
willing  to  recognize  guano  to  be  contraband  of  war,  so  far  as 
the  results  of  its  exports  go,  by  giving  to  the  enemy  the 
means  of  carrying  on  the  war  ;  there  is  yet  a  principle  of 
international  law  sanctioned  in  all  cases  that  we  know  of,  and 
this  principle  is  "  that  neutrals  cannot  undertake  to  carry  on 
"a  commerce  forbidden  in  time  of  peace." 

The  recognition  of  a  state  of  civil  war,  and  investment 
of  the  contending  parties  with  the  rights  of  belligerents, 
do  not  give  to  neutrals  rights  and  privileges  that  they 
did  not  possess  whilst  the  nation  declared  in  such 
condition  was  in  a  state  of  peace,  and,  therefore, 
a  commerce  that  was  illicit  before  the  war,  continues 
to  be  so  during  it,  and  those  engaged  in  such  for- 
bidden trade  are  amenable  and  responsible  to  the  laws  for 


their  acts.  The  laws  and  regulations  of  trade  of  Peru  before 
the  war,  enforced  by  all  governments,  whether  de  jure 
or  de  facto,  strictly  forbade  all  traffic  in  guano  ;  its  exports 
were  limited  to  the  Chincha  Islands,  and  only  on  account  of 
the  government ;  all  vessels  were  forbidden,  under  severe 
penalties,  from  approaching  any  of  the  guano  deposits  except 
the  Chinchas,  and  this,  having  previously  obtained  a  license 
from  the  Custom-House  at  Callao ;  no  authority  had  power 
to  grant  permits  for  loading  at  any  other  place.  Pavellon 
de  Pica  and  Punta  de  Lobos  were  places  closed  to  the 
foreign  trade,  and  no  executive  authority,  by  the  said  laws 
of  Peru,  has,  in  time  of  peace  or  war,  power  to  open  ports  to 
the  said  foreign  trade. 

They  are  indispensable  conditions  of  neutrality,  not 
to  commit  acts  between  the  belligerents  that  were  not 
lawful  before  the  war;  not  to  acknowledge,  in  any  of 
them,  powers  that  they  did  not  possess  when  invested  with 
peaceful  and  unrivalled  executive  authority  of  the  country ; 
not  to  modify  the  relations  with  one  of  the  belligerents  in 
such  a  way  as  to  injure  the  interests  of  the  other  by  giving  to 
one  rights  without  obligations,  and  to  the  other  obligations 
without  rights ;  not  to  admit  from  the  one  privileges  that 
involve  an  acknowledgment  of  rights,  without  consenting 
in  the  other  the  reciprocal  power  to  counteract  the  injuries 
that  he  may  receive  from  the  exercise  of  those  rights.  Neu- 
trality, to  be  respected,  must  be  absolute ;  otherwise  its  objects 
are  defeated  and  its  rights  void.  The  belligerents,  in  a  civil 
war,  can  have  no  more  rights  or  authority  than  what  a  regu- 
larly constituted  government  could  have  according  to  the 
laws  of  the  country ;  neutrals  cannot  acknowledge  in  them 
more  power  than  what  the  latter  possess,  and  the  proper  ex- 
tent of  such  a  power  can  only  be  ascertained  by  those  laws. 

The  law   of  nations,  by  forbidding  to  neutrals,  in   their 


relations  with  belligerents,  to  do  what  was  illicit  when  the 
belligerents  were  at  peace,  has  established  a  solid  principle 
to  govern  them  in  these  cases.  Secretary  Cass  has  confirmed 
this  principle  by  stating,  in  his  dispatch  of  the  22d  of  May, 
1858,  that  "Peru,  so  far  as  respects  the  effects  of  its 
"political  condition  upon  its  intercourse  with  other  powers, 
"was  in  a  state  of  peace."  It  is  equivalent  to  say  that, 
during  the  civil  war,  it  was  not  lawful  for  the  citizens  of  the 
United  States  to  do  what  they  could  not  do  when  the  country 
was  in  a  state  of  peace,  or,  in  other  words,  that  the  laws  and 
regulations  that  governed  the  commercial  relations  of  the 
United  States  with  Peru  before  the  war,  were  to  be  consid- 
ered as  governing  and  binding  them  during  the  war.  But 
the  captains  of  the  Georgiana  and  Lizzie  Thompson,  by  their 
free  and  uncontrolable  action,  undertook  to  do  what  was  for- 
bidden by  those  laws  and  regulations,  in  behalf  of  one  of  the 
belligerents,  and  in  spite  of  their  knowledge  of  those  laws, 
and  of  the  warnings  published  through  the  world  ;  they  in- 
vested parties  with  authority  that  they  did  not  have  under 
the  rights  of  belligerents,  and  willingly  volunteered  them- 
selves, for  the  sake  of  a  high  freight,  to  trespass  upon  the 
limits  imposed  upon  them  as  neutrals,  renouncing  thereby 
their  rights  as  such.  The  capture  and  confiscation  of  these 
ships  was,  therefore,  made  by  the  government  of  Lima,  in 
virtue  of  a  perfect  right  most  unequivocally  belonging  to  it 
as  a  belligerent,  as  well  as  the  only  legal  executive  power  of 
Peru. 


26 


IX. 

Our  arguments,  so  far,  have  been  grounded  on  the  suppo- 
sition that  a  state  of  civil  war  invested  Yivanco,  as  a  belliger- 
ent, with  the  rights  as  such ;  we  believe  to  have  proved  that 
these  rights  were  not  absolute,  because  a  belligerent  cannot 
claim  more  authority  than  what  is  possessed  by  a  regularly 
constituted  government,  according  to  the  laws  of  the  coun- 
try, and  even  if  he  claimed  more,  neutral  powers,  by  the 
law  of  nations,  are  bound  not  to  recognize  them,  at  least 
during  .the  transitory  state  of  war.  Yivanco  had  no  author- 
ity to  annul  the  laws  and  regulations  of  trade  of  the  nation  ; 
to  open  ports  to  foreign  flags  for  commerce,  or  for  any  other 
purposes ;  but  presuming,  for  a  moment,  that  he  had  such 
an  authority,  where  is  his  decree  annulling  those  laws,  and 
throwing  open  to  foreign  flags  the  places  of  Pavellon  de  Pica 
and  Punta  de  Lobos  ?  Where  have  they  been  published  ? 
Where  is  his  resolution  investing  Bivas  with  power  to  so 
alter  the  fiscal  laws  of  the  country  ?  Nobody  has  seen  them, 
because  he  never  issued  such  revelant  proof  of  his  folly. 
The  masters  of  the  ships  in  question  never  saw  them; 
although  knowing  that  what  they  were  to  do  was  forbidden, 
it  is  natural  to  presume  that  they  ought  to  have  asked  for 
the  act  from  the  belligerent  that  raised  that  prohibition. 

They  candidly  accepted  the  assurance  given  by  a  man  that 
commanded  a  ship  of  war,  publicly  declared  a  pirate,  that 
all  ivas  right,  and  took  his  permit  to  go  where,  by  the  laws 
of  the  country  before  the  war,  and  by  the  law  of  nations  as 
neutrals,  they  were  forbidden  to  go,  What  explanation  can 
be  given  for  this  gross  carelessness  and  candid  confidence  ? 
The  expectation  of  being  able  to  take  in  their  cargoes,  and 
sail  under  the  protection  of  the  pirate  ship  before  they  could 


27 

be  detected — the  confidence  in  being  able  to  run  away,  in 
case  of  emergency,  as  other  ships  did  at  the  Chinchas,  on 
approach  of  the  government  cruisers.  It  was  a  risky  but 
profitable  business,  and,  in  their  judgment,  the  chances  in 
their  favor  were  such  that  they  considered  themselves  justi- 
fied in  attempting  it.  Their  ignorance,  as  to  the  risk,  cannot 
be  alleged,  not  only  for  the  reasons  already  stated,  and  for  the 
evidences  before  them,  and  which  they  have  not  attempted 
to  deny,  but  because  the  consignees  of  the  G-eorgiana,  at 
Valparaiso,  in  their  letter  of  December  15th,  1857,  to  her 
captain,  said  to  him,  writing  about  freights,  that  "some 
charterers  were  offering  to  take  the  risk  of  the  Chincha 
Islands,  they  being  in  possession  of  the  revolutionary  party, 
but  that  they  would  not  advise  him  to  accept  such  a  char- 
ter." This  letter,  which  will  be  found  with  the  documents 
that  we  publish,  was  taken  on  board  the  Martina  a 
vessel  captured  robbing  guano  after  the  revolution  was 
entirely  ended.  This  vessel  belonged  to  a  company 
formed  at  Valparaiso  for  the  purposes  of  robbing  guano,  and 
it  is  very  singular  how  the  aforesaid  letter  was  in  their  pos- 
session, unless  we  presume  that  the  Georgiana  was  char- 
tered to  the  same  company,  and  that  the  captain  remitted  it 
to  prove  "  the  risks"  that  he  was  to  run,  and  the  consequent 
necessity  of  compensating  them  properly.  The  Department 
of  State  has  this  letter,  and  we  must  believe  that  this  point 
has  been  satisfactorily  explained  to  the  United  States  Gov- 
ernment. 


X, 


The  official  correspondence  printed  hereunto,  and  to  which 
we  earnestly  call  the  attention  of  the  American  public  and 
press,  shows  the  position  taken  by  the  Peruvian  Govern- 
ment in  this  question,  and  the  authorities  on  which  it  has 
relied  to  sustain  it  against  the  demands  of  the  United  States 
Government,  and  the  not  less  ardent  desires  of  that  govern- 
ment to  satisfy  all  the  requirements  made  in  the  name  of  a 
nation  that  Peru  is  in  the  habit  of  cherishing  and  respect- 
ing. Not  satisfied  with  the  intimate  and  unanimous  convic- 
tion of  the  Cabinet,  and  the  most  prominent  men  of  the 
country  as  to  the  justice  of  her  position,  and  notwithstanding 
that  the  Government  of  Chili  most  unhesitatingly  acknowl- 
edged the  rights  claimed  by  the  legal  Government  of  Peru, 
"  declining  to  extend  its  protection  to  the  masters  or  owners 
"  of  the  Chilian  vessels  captured  by  the  Government  of  Peru, 
u  in  which  it  recognized  &  perfect  right  to  seize  and  confiscate 
"  them"  Peru  sought  the  opinion  of  American  jurists,  emi- 
nent by  their  knowledge  and  sound  judgment,  as  well  as  for 
their  sterling  integrity,  and  that  opinion  which  we  also  pub- 
lish, has  been  a  full  confirmation  of  her  views  and  position. 
The  French  Government,  on  deciding  on  the  claims  of  Mr. 
Freraut,  charterer  of  the  American  ships,  or  at  least  of  one 
of  them,  has  also  confirmed  the  rights  claimed  by  the  legal 
Government  of  Peru,  as  will  be  seen  by  the  note  of  Count 
Walewsky  to  the  Charge  d' Affaires  at  Lima.  Under  these 
circumstances,  and  however  great  may  be  the  desire  of 
General  Castilla's  Government  to  receive  with  regard  the 
claims  set  forth  by  the  United  States,  Peru  could  not  sur- 
render voluntarily  her  rights  as  an  independent  nation,  and 


29 

accede  to  the  initation  of  a  principle  that  would  give  up  her 
future  and  the  means  of  her  prosperity,  to  the  bold  grasp  of 
a  parcel  of  speculators  ;  she  could  not  assent  to  an  invasion 
of  sovereign  rights  which  she  is  entitled  to  have  respected 
by  more  powerful  nations,  so  long  as  she  is  included  in  their 
number ;  she  could  not  consent  to  an  abrogation  of  princi- 
ples of  international  law,  confirmed  by  an  international  prac- 
tice of  centuries,  to  the  injury  of  those  unfortunate  countries 
that  fight  yet  to  obtain  order  and  liberty.  Her  cause  is  the 
cause  of  Hispano-America,  and  might  be  the  cause  of  the 
United  States,  if  (which  God  forbid)  internal  commo- 
tions should  most  unfortunately  come  to  disturb  the  peace 
and  prosperity  of  a  country,  the  honor  of  the  present  age. 
To  judge  of  the  results  of  the  enforcement  of  the  principles 
advanced  by  Mr.  Buchannan  in  the  pending  question,  we 
must  divest  ourselves  of  our  power  and  peaceful  condition, 
examine  what  an  effect  they  would  have  in  the  United 
States,  in  case  of  an  internal  commotion,  and  decide,  if 
similarly  situated,  the  lawful  government  of  the  Union  is 
willing  to  abide  by  the  same  theory,  allow  to  the  revolters 
rights  of  belligerents,  and  consent  to  the  spoliation  of  the 
national  property  by  a  parcel  of  speculators,  assisted  and 
abetted  by  foreign  merchant  ships,  whose  managers  know 
that  what  they  are  doing  is  against  the  laws  of  the  Union. 
To  acknowledge  in  a  revolter  belligerent  rights,  and  by  de- 
claring a  country  in  a  state  of  civil  war,  give  to  it  two  gov- 
ernments with  equal  authority  and  obligations,  it  is  also 
necessary  to  absolve  the  one  from  the  damages  done  by  the 
other,  and  declare  both  irresponsible  for  acts  not  within  their 
respective  jurisdiction  ;  to  divide  the  national  obligations 
previous  to  the  war,  and  claim,  during  the  war,  one-half  of 
them  from  each,  without  right  to  claim  the  whole  of  them 
from  only  one;  to  abandon  all  claims  from  the  successful 


30 


party  for  actions  of  the  vanquished.  It  is  in  fact,  in  a  prac- 
tical case,  to  release  the  liberal  Government  of  Mexico,  if 
victorious,  from  indemnity  for  all  damages  that  the  doings 
of  Miramon  may  have  caused  to  American  citizens.  Are 
the  United  States  willing  to  pursue  such  a  line  of  conduct 
in  their  foreign  relations,  and  in  their  domestic  dissensions  ? 
Be  it  so,  if  they  choose.  They  have  the  power,  and  the 
weak  must  submit ;  but  let  them  proclaim  it,  and  let  the 
practice  confirm  the  theory.  A  principle  must  be  weighed 
in  all  its  phases  before  it  is  sustained ;  once  adopted,  must 
be  followed  in  all  its  consequences,  as  otherwise  it  is  no 
principle  at  all.  The  rights  that  it  sanctions  are  compen- 
sated by  the  obligations  that  it  imposes,  and  the  claim  of 
the  former  necessarily  involves  the  recognition  of  the  latter. 


31 


XL 


The  action  of  Peru,  in  the  seizure  of  the  Georgiana  and 
Lizzie  Thompson,  was  legal,  according  to  her  own  laws  and 
the  law  of  nations.  The  courts  of  justice  that  confiscated 
these  ships  acted  in  strict  conformity  to  those  laws.  The 
owners  or  masters  had  the  right,  agreeably  to  the  principles 
of  international  law,  to  complain  of  the  capture,  and  defend 
themselves,  only  before  those  courts,  and  invoking  the  laws 
of  the  captor.  They  exercised  this  right ;  there  was  no  de- 
viation of  justice,  and  they  were  condemned  with  perfect 
legality.  The  United  States,  then,  by  the  law  of  nations, 
had  no  right  to  interfere,  and  Peru,  by  the  same  law,  and  by 
the  laws  of  the  country,  had  no  right  to  alter  that  decision. 

The  Government  of  Peru,  guided  by  a  spirit  that  we 
cannot  blame,  seeing  its  reasons  unattended  to,  and  re- 
marking a  persistency  that  might  lead  to  disagreeable  re- 
suits,  declared  to  the  United  States  Government  its  readiness 
"  simply  to  submit  the  question  raised  by  the  capture  of  the 
"  ships  Lizzie  Thompson  and  Georgian^  to  the  decision  of 
"  any  European  nation  whatever,  and  to  leave  to  his  Excel- 
"  lency  the  President  of  the  United  States,  the  choice  of 
"  such  power,  as  well  as  the  prefixing  of  the  time  for  carry- 
"  ing  the  thing  into  effect."  What  has  been  the  answer 
given  by  the  President  of  the  United  States  to  this  reason- 
able and  equitable  proposition  ?  He  has  simply  insisted  on 
his  previous  demands,  and  instructed  his  Minister  to  leave 
Peru,  suspending  all  diplomatic  relations  between  both 
countries. 

We  cannot,  indeed,  realize  why  this  proposal  is  declined, 
because,  if  Peru  is  in  the  wrong,  it  is  not  to  be  ex- 
pected that  any  nation  in  the  world,  and  in  a  question  with 


32 

the  United  States,  would  decide  in  her  favor,  and  less  so,  on 
a  point  which,  if  adjudged  against  Peru,  would  give  to 
foreign  powers  advantages  which  they  did  not  have  nor 
claim  heretofore  in  their  relations  with  countries  disturbed 
by  internal  commotions.  The  Government  of  Peru  knows 
perfectly  well  that  it  cannot  expect  to  exert  influences  or 
weight  arising  from  power,  position,  or  commercial  inter- 
course, in  the  arbitration  of  a  dispute  with  a  great  nation, 
and  believes,  on  the  contrary,  that  in  the  present  case,  all 
the  influences  are  on  the  other  side  ;  but  the  question  being 
one  of  principles,  and  having  its  source  in  the  law  of  nations ; 
its  decision  involving  the  settlement  of  points  made  ques- 
tionable by  the  United  States,  the  Peruvian  Government 
thought,  very  properly,  that  the  only  expedient  for  an  ami- 
cable solution,  was  the  decision  of  another  power,  and  to 
give  an  additional  proof  of  respect  for  the  United  States, 
gave  exclusively  to  the  President  the  choice  of  that  power. 
What  more  can  be  asked  from  that  government  ?  A  con- 
sideration for  the  relative  weakness  of  a  friendly  republic,  if 
no  other  reason,  ought  to  have  induced  the  President  of  the 
United  States  to  accept  the  proposed  means  of  settling  the 
difficulty;  and,  more  so,  when  this  difficulty  arises  from  the 
different  interpretation  given  to  principles  generally  accept- 
ed and  observed,  on  their  special  application  to  a  particular 
case,  There  is  no  national  question,  no  insult,  no  breach  of 
treaties,  no  wounded  honor  between  the  two  countries.  It 
is  what  we  may  call  a  difference  of  opinion  between  Presi- 
dent Buchanan  and  the  Government  of  Peru ;  and  as  we 
cannot  presume  that  the  former  wishes  to  impose  his  opinion 
on  the  latter,  unless  justified  by  an  impartial  judgment,  the 
reason  for  his  declining  the  proposal  of  Peru  is  incompre* 
hensible. 

Is  President  Buchanan  afraid  that  the  decision  might  be 


33 

favorable  to  Peru  ?  But,  then,  this  same  fear  ought  to  be  an 
incitement  for  him  to  refer  the  question  to  a  disinterested 
nation ;  because  the  fear  implies  a  doubt  in  the  correctness 
of  his  position,  and  in  such  a  case,  to  press  his  demands, 
backed  by  the  irresistible  power  of  the  United  States,  signi- 
fies to  assume  a  dictatorial  attitude  towards  a  country  whose 
force  arises  from  the  strength  of  its  rights,  but  that  is  materi- 
ally unable  to  maintain  them. 

It  has  been  stated  that  the  arbitration  was  declined, 
because  the  question  was  one  of  damages,  and  reduced 
to  dollars  and  cents;  but  it  is  plain  that  to  reach  this 
point,  it  is  necessary  to  decide  previously  whether  the 
United  States  have  the  right  to  claim  such  damages. 
The  indemnity  can  only  take  place  after  the  principle, 
in  virtue  of  which  is  claimed,  has  been  decided  against 
Peru,  or  after  Peru  may  have  recognized  the  correct- 
ness of  the  principle  invoked  .by  the  United  States.  Peru, 
on  the  contrary,  maintains  that  this  principle  is  not  correct, 
and,  therefore,  the  question  of  indemnity  cannot  come  up, 
until  this  previous  point  is  settled.  Peru  has  proposed  a 
most  liberal  and  equitable  way  of  settling  it,  and  unless  it  is 
required  from  that  republic  to  make  a  discretionary  sur- 
render, giving  the  character  of  infallibility  to  a  position  not 
justified  by  any  doctrine  of  international  law  published  here- 
tofore, it  is  unreasonable  to  assume  that  the  pending  ques- 
tion is  one  of  dollars  and  cents.  We  wish  it  was  so,  because 
then,  a  few  dollars  more  or  less  would  bring  about  a  solu- 
tion ;  but,  unfortunately,  the  question  is  not  of  money,  but  of 
national  sovereignty  and  international  law,  and  in  this  par- 
ticular case  it  is  of  life  or  death  for  Peru. 

The  President  of  the  United  States  will  explain  his  reasons 
for  declining  to  accept  the  only  honorable  and  pacific  way 
of  settling  this  difference;  the  Senate  and  people  of  the 


United  States  will  judge  of  the  true  value  of  these  reasons, 
and  to  Congress  and  to  this  people  we  appeal  from  such  a 
decision,  fully  convinced  that  before  this  august  tribunal, 
the  course  of  the  Government  of  Peru  will  be  duly  appreci^ 
ated,  and  that  justice  will  be  done  regardless  of  all  motives 
unworthy  of  a  noble  and  generous  nation. 


XII. 


Before  finishing  the  task  that  a  desire  to  see  justice  done 
to  a  weak  nation  has  imposed  upon  us,  we  must  call  public 
attention  to  the  last  propositions  made  by  the  United  States 
Government  to  settle  the  question  regarding  the  Georgiana 
and  Lizzie  Thompson.  A  proper  respect  for  the  dignity  of 
that  government  would  have  made  desirable  the  suppression 
of  that  part  of  the  official  correspondence  that  has  been  pub- 
lished in  the  Times  and  it  would  have  been  suppressed 
if  our  advice  had  been  taken  on  the  subject.  The  question 
on  principle  had  been  sufficiently  illustrated,  and  the  rights 
of  Peru  maintained  with  a  strength  of  argument  that  showed, 
to  any  unprejudiced  mind,  the  correctness  of  her  position, 
We  were  willing  to  submit  that  question  to  the  judgment  of 
the  public  and  press,  on  its  main  points,  whilst  it  remained 
within  the  limits  of  a  legal  controversy,  without  any  wishes, 
on  our  part,  to  present  the  acts  of  the  present  government 
of  the  Union  under  a  light  more  disadvantageous  than  the 
one  given  to  it  by  the  correspondence  up  to  the  time  of  Mr, 
Osma's  proposition  to  refer  it  to  the  decision  of  a  third 
power.  But  it  is  probable,  that  the  desire  of  the  Govern- 
ment of  Peru  to  convince  the  world  of  the  injustice  of  Mr, 
Clay's  assertions,  in  attempting  to  charge  it  with  the  respon- 


35 

sibility  of  the  rupture,  has  induced  the  said  government  to 
publish  that  correspondence,  and  this  done,  it  is  our  duty  to 
make  such  remarks  as  the  same  suggests,  regardless  of  the 
motives  that  inclined  us  to  be  silent  on  it. 

Secretary  Cass  suggested  "  that  the  proposition  to  refer  the 
"  question  to  arbitration  would  be  considered,  provided  the 
"  Peruvian  Government  should  previously  fully  indemnify  the 
"  claimants,  making  this  appear  as  a  spontaneous  act  of  Peru." 

It  is  equivalent  to  say,  that  the  United  States  wanted  to 
have  the  amount  of  the  claim,  independent  of  its  fairness  or 
injustice.  Is  this  proceeding  in  conformity  with  any  prin- 
ciple of  law,  justice,  or  reason  ?  It  seems  almost  incompre- 
hensible that  the  Secretary  of  State  of  a  civilized  nation 
Could,  for  a  moment,  entertain  the  idea  of  this  proposition, 
and)  full  of  respect  as  we  are  for  the  wisdom  and  integrity 
of  the  worthy  statesman,  we  are  willing  to  believe,  that  there 
has  been  some  misunderstanding  of  his  words.  But  we  are 
not  less  surprised  to  read  Mr.  Clay's  dispatch  of  the  23d  of 
December,  1859,  where  he  states,  that  "all  discussion,  s 
"  regards  to  the  principles  involved  in  this  case,  and  the 
"  right  of  those  claiming  indemnity,  had  been  ended,  but  that 
11  he  was  willing  to  discuss  about  the  amount  claimed  to 
"  make  the  reductions  that  might  be  considered  just  and 
14  convenient."  So,  the  United  States  Government  decides, 
by  its  own  authority,  that  Peru  is  in  the  wrong,  does  not 
listen  to  any  reason,  is  unwilling  to  hear  any  impartial 
opinion,  and  assuming  that  Peru  must  submit  to  its  decision, 
has  the  generosity  to  descend  to  a  discussion  only  on  the 
amount  to  be  paid ! !  Mr.  Buchanan  does  not  consider  that 
Peru  is  a  sovereign  and  independent  nation,  with  equal 
rights  to  the  United  States,  He  brings  her  down  to  the 
condition  of  a  vassal  of  his  government,  and  bound  as  such 
to  acquiesce  to  his  will.  Neither  the  rights  of  sovereignty 


36 

nor  the  law  of  nations  need  be  respected  with  a  country  that 
has  not  the  force  to  repel  force,  and  its  very  weakness  is  a 
strong  reason  to  show  no  consideration  or  friendly  regard. 
We  blush,  in  writing  these  lines,  in  the  name  of  the  Ameri- 
can people. 

Mr.  Buchanan  has,  however,  carried  farther  yet  the  system 
of  scorn  and  humiliation  followed  towards  Peru,  as  will  be 
seen  by  Mr.  Clay's  note  of  the  5th  of  June,  in  which,  insist- 
ing on  his  former  views,  demands  from  Peru  u  the  recognition, 
"in  specific  terms,  of  her  responsibility  for  the  seizure  and 
"confiscation  of  the  Georgiana  and  Lizzie  Thompson,  and 
"  the  appointment  of  a  mixed  commission  to  decide  on  the 
"  amount  of  indemnity  for  this,  and  all  other  cases  of  claims 
"between  the  two  countries."  This  proposition  is  a  natural 
consequence  of  the  principle  formerly  laid  down  by  Mr.  Clay, 
viz.,  "that  all  discussion,  on  the  principles  of  the  case,  was 
"at  an  end."  The  object  of  the  proposal  is,  to  make  Peru 
pay,  at  all  hazards,  and  this  is  more  clearly  shown  in  that 
gentleman's  substitute  making  "  Peru  pay  a  considerable 
"  amount  of  money  to  the  United  States  in  settlement  for  all 
"  pending  claims."  The  Government  of  Peru  has  agreed  to  the 
appointment  of  the  mixed  commission,  to  which  all  claims 
should  be  submitted,  but  the  actual  case  of  the  Georgiana 
and  Lizzie  Thompson  cannot  be  in  a  state  to  be  so  submitted 
to  that  commission  until  it  is  decided,  on  the  question  of 
principle,  against  that  government.  The  United  States  pre- 
tend that  Peru  should  consent  to  abandon  the  legal  point, 
but  to  this  pretension  it  is  impossible  for  her  to  give  an 
assent,  even  by  implication,  because  by  so  doing  she  would 
establish  a  most  fatal  precedent  against  her  rights  of 
sovereignty. 

Mr.  Clay's  substitute  cannot  be  considered  but  as  a  mean 
trap,  unworthy  of  a  diplomat,  to  make  the  Government  of 


3? 

Peru  acknowledge,  by  implication,  the  right  of  a  revolter  to 
dispose  of  the  national  property,  and  of  American  citizens  to 
speculate,  with  perfect  security,  with  whatever  filibuster  may 
take  possession  of  the  guano  deposits.  To  obtain  these 
privileges,  it  is  well  worthy  to  be  generous  in  the  case  that 
is  used  as  a  pretext  for  the  purpose,  and  therefore  he  could 
consent  to  a  discussion  to  reduce  the  amount  claimed.  What 
a  difference  between  Mr.  Clay's  and  Secretary  Cass'  propo- 
sitions !  !  The  latter,  wrong  as  he  was,  consented  to  doubt 
of  the  principle,  provided  money  was  paid  to  satisfy  the 
claimants.  He,  at  least,  gave  to  Peru  the  benefit  of  a  possi- 
bility of  her  rights  being  recognized  and  affirmed,  although 
biased  by  a  payment  that  might  contradict  that  recognition. 
The  former  (Mr.  Clay),  the  friend  of  Peru,  proposed  to  obtain, 
under  cover  of  a  generous  feeling,  an  abandonment  of  those 
rights,  and  to  establish  a  precedent  most  pernicious  to  her 
future,  "by  consenting  to  reduce  the  amount  of  the  claims." 

The  public  can  judge  if  we  were  right,  when  stating  our 
earnest  wish  to  have  suppressed  that  part  of  the  correspond- 
ence that  we  have  slightly  mentioned  in  the  last  pages, 
Following  the  same  desire,  we  have  endeavored  to  trace  only 
the  main  lines,  sparing  to  ourselves  the  feeling  of  disgust 
that  causes  a  conduct  so  unworthy  of  the  representatives  of 
a  great  people  in  their  questions  with  a  sister  republic. 

Most  fortunately  for  Peru,  and  for  the  credit  and  dignity 
of  the  United  States,  the  government  of  General  Castilla,  re^ 
lying  on  the  integrity  of  the  United  States  Senate,  atid  on 
the  sympathy  of  the  American  people,  has  sustained 
respectfully,  but  firmly,  the  rights  of  Peru  without  being 
influenced  by  the  threatening  insinuations  of  those  represen^ 
tatives,  and  as  we  have  stated  before^  we  hope  and  trust  that 
"justice  will  be  done  regardless  of  all  motives  unworthy  of 
"  a  noble  and  generous  nation*" 


39 


DOCUMENTS. 


(Translation  from  the  Spanish.) 


LEGATION  OF  THE  UNITED   STATES,  ) 
LIMA,  February  9th,  1858.        J 

The  undersigned,  Envoy  Extraordinary  and  Minister  Plenipotentiary  of  the  United 
States  of  America,  has  to-day  had  the  honor  to  receive  the  note  which  his  Excellency 
the  Minister  of  Foreign  Affairs  has  addressed  to  him,  under  date  of  the  3d,  in  reply  to 
one  from  the  undersigned  of  the  1st  instant. 

With  respect  to  the  important  error  which  H.  E.  has  attributed  to  the  undersigned, 
under  the  supposition  that  H.  E.  had  informed  him  that  the  captains  of  the  American 
vessels  seized  by  the  Tumbes  would  be  discharged  from  prison  so  soon  as  their  declar- 
ations were  taken,  the  undersigned  can  only  say,  that  such  was  the  deduction  which  he 
made  from  his  conversation  with  H.  E.  at  their  interview  of  the  30th  of  the  last  month  ; 
a  deduction  which  the  undersigned  might  suppose  was  exact,  when  we  consider  that  the 
capture  of  the  aforesaid  vessels  was  made  under  special  instructions  of  H.  E. ;  and  that 
the  decree  of  the  30th  ultimo,  ordering  that  their  trials  should  be  passed  to  the  Collector 
of  the  Custom-House  of  Callao,  as  judge  of  contrabands,  seizures,  or  confiscations,  was 
signed  by  H.  E.  as  Minister  of  the  Treasury.  All  this  led  the  undersigned  to  believe 
that  H.  E.  exercised  a  discretionary  power  in  this  matter,  certainly  if  viewed  in  the  light 
of  the  retention  or  liberty  of  the  prisoners.  But,  be  it  as  it  may,  the  undersigned  will 
ever  regret  having  misunderstood  any  word  or  expression  used  by  H.  E.,  more  particu- 
larly in  matters  of  so  much  importance. 

But  the  demand  which  the  undersigned  made  in  his  note  of  the  1st,  that  the  captains 
of  the  Lizzie  Thompson  and  Georgiana  should  be  liberated,  after  making  their  declaration, 
was  not  founded  entirely  on  some  word  which  might  have  transpired  at  the  aforesaid 
interview  of  H.  E.  with  the  undersigned,  but  in  higher  reasons,  which  were  expressed  in 
his  note,  as  follows:  that  no  just  and  sufficient  reason  existed  for  their  arrest  and 
imprisonment. 

Nevertheless,  before  entering  upon  the  discussion  of  the  principal  question,  the  under- 
signed deems  it  his  duty  to  assure  H.  E.  that  he  is  right  in  supposing  that  the  under- 
signed was  not  well  informed  of  the  liberation  of  Captains  Wilson,  Reynolds,  and  L.  A. 
Hamilton,  when  he  addressed  his  note  of  the  first. 

After  these  preliminary  observations,  the  undersigned  will  continue  his  examination 
of  the  question  of  the  capture  of  the  Lizzie  Thompson  and  Georgiana  by  the  national 
war-steamer  Tumbes,  on  the  24th  of  January  last;  and  he  has  the  honor  to  inform  H.  E. 
the  Minister  of  Foreign  Affairs,  that  notwithstanding  the  presence  of  those  vessels  in 
Pabellon  de  Pica  and  Punta  de  Lobos,  engaged  in  loading  guano,  may  be  in  time  of 
peace  and  order  considered  as  under  the  control  of  the  republic,  in  the  present  state  of 
the  country,  and  under  the  circumstances  in  which  the  capture  was  made  by  the  Tumbes^ 
the  undersigned  believes  he  can  demonstrate : 


40 


let.  That  neither  said  vessels  nor  their  captains  were  engaged  in  a  "  scandalous  and 
(C  criminal  contraband  of  guano,  in  contravention  of  the  fiscal  laws,  commercial  regulations, 
•"'  and  coastwise  ordinances  of  Peru." 

3d.  That  the  capture  of  the  American  vessels  Lizzie  Thompson  and  Georgiana  by  the 
Tumbes,  in  accordance  with  the  instructions  of  H.  E.  the  Minister  of  the  Treasury  in 
Lima,  was  not  effected  with  perfect  right,  and,  consequently,  was  irregular. 

3d.  That  the  manner  of  effecting  this  capture,  and  the  transfer  to  the  port  of  Callao, 
was  unjustifiable,  cruel  (not  to  say  barbarous),  and  illegal. 

The  undersigned  proposes  to  examine  these  points  separately,  and  whatever  observ- 
ations he  may  deem  it  necessary  to  make  in  treating  them,  he  begs  that  H.  E.  the 
Minister  of  Foreign  Affairs  to  be  assured  that  they  are  made  with  all  the  respect  and 
consideration  due  the  Exmo  Council  of  Ministers  and  the  people  of  Peru. 

The  undersigned  deems  it  necessary  to  make  this  explanation,  because  the  matter  in 
question  is  very  delicate  ;  and,  in  its  discussion,  he  does  not  wish  to  wound  the  suscepti, 
bility  of  others. 

The  undersigned  will  now  proceed  to  demonstrate  that  the  Lizzie  Thompson  and 
Georgiana,  and  their  captains,  cannot  be  justly  accused  of  having  been  engaged  in  a 
criminal  and  scandalous  contraband  of  guano  in  Pabellon  de  Pica  and  Punta  de  Lobos. 

By  examining  the  facts  appearing  by  the  declarations  of  Captains  Wilson  and 
Reynolds,  certified  copies  of  which  the  undersigned  has  the  honor  to  annex.it  will  be 
seen  that  both  went  to  the  port  of  Iquique  for  the  purpose  of  engaging  in  a  legal  traffic. 
The  Lizzie  Thompson  sailed  directly  from  San  Francisco,  State  of  California,  with  a 
cargo  of  barley  for  Iquique;  and  the  Georgiana,  from  Townsend,  Washington  Territory, 
in  the  United  States,  with  a  cargo  of  lumber  for  Valparaiso ;  at  this  place  the  consignees 
of  the  latter  sold  it,  conditioning  for  its  delivery  in  Iquique,  or  at  a  place  in  Peru  called 
"  Mala." 

There  was  no  decree  which  prohibited  their  going  to  Iquique,  and  their  cargoes  were 
of  innocent  articles  of  commerce. 

On  arriving  at  this  port,  they  found  a  Custom-House  regularly  established,  with  its 
Collector  and  other  port  officers,  who  visited  their  vessels  in  due  form,  and  they  then 
entered,  which  they  could  not  have  done  without  permission.  The  captains  of  the  vessels 
there  found  local  authorities  de  facto,  in  possession  of,  and  exercising  their  jurisdiction, 
and  they  were  obliged  to  recognize  them,  as  well  as  their  acts,  since  the  aforesaid  vessels 
were  within  the  limits  of  Peru.  It  did  not  belong  to  them  to  enquire  in  what  manner  the 
persons  exercising  authority  in  the  port  fulfilled  their  duties — neither  could  they  call  in 
question  their  right  to  exercise  authority  in  Iquique ;  in  the  same  manner  that  it  was  not 
permitted,  either  to  them  or  to  other  vessels,  to  deny  or  call  in  question  the  jurisdiction 
of  the  Custom-House  in  Callao,  and  of  the  employees  of  that  port. 

If  they  had  contravened  any  of  the  regulations  of  the  port,  or  of  the  Custom-House, 
they  would  undoubtedly  have  been  responsible  to  the  actual  authorities  of  Iquique. 

After  entering  the  port,  the  Lizzie  Thompson  left  her  cargo  there.  The  Georgiana 
obtained  a  license  from  the  Custom-House  to  discharge  hers  at  Mala.  The  captain  of 
the  first,  after  discharging  his  vessel,  was  solicited  by  the  Consular  Agent  of  the  French 
Empire,  Mr.  Federico  Freraut,  for  her  charter,  and  that  she  should  take  a  cargo  of  guano 
in  Pabellon  de  Pica  or  Punta  de  Lobos,  a  contract  for  which,  as  the  aforesaid  Consular 
Agent  informed  the  captain,  had  been  celebrated  with  the  Peruvian  Government. 
Captain  Wilson,  before  accepting  the  freight,  went  to  the  Custom-House  authorities  of 
Iquique  to  enquire  if  he  would  be  permitted  to  load  in  those  places ;  and  they  not  only 
told  him  yes,  but  that  they  would  grant  a  license  for  the  vessel  to  go  there.  The  charter- 
party  was  made  immediately  thereafter  with  the  French  Consular  Agent ;  and  the  Lizzie 
Thompson,  after  having  obtained  a  license  in  due  form  to  load  in  Pabellon  de  Pica,  or 
Punta  ds  Lobos,  was  cleared  by  the  Custom-House  of  Iquique  on  the  19th  of  December 
last. 


The  captain  of  the  Georgiana  followed  the  same  course,  received  identical  information 
from  the  authorities,  and  chartered  his  vessel  to  Don  Jose  Santos  Ossn,  who  acted  as 
agent  of  the  house  of  Lequellec  &  Bordes,  of  Valparaiso,  and  the  freight  was  in  the 
same  manner  to  load  guano  at  "  Pabellon  de  Pica  "  and  "  Punta  de  Lobo.s."  Having  ob- 
tained a  license  from  the  authorities  so  to  proceed,  she  was  cleared  in  form  by  the  Cus- 
tom-House of  Iquiqne,  on  the  29th  of  December,  1857. 

It  is,  therefore,  evident  that  the  captains  of  the  aforesaid  vessels  went  to  Tquique  with 
the  sole  object  of  leaving  their  cargoes,  and  having  accomplished  that,  they  thought  of 
chartering.  They  did  not  go  to  that  port  in  search  of  cargoes  of  guano,  since  if  that  had 
been  their  object,  it  would  have  been  expressed  in  their  original  letters,  sent  from  San, 
Francisco  and  Townsend ;  and  would,  in  all  probability,  have  made  their  contracts  for 
the  purchase  and  delivery  of  the  guano,  before  going  to  Iquique.  Such  was  the  course, 
as  the  undersigned  understands,  with  all  the  vessels  which  loaded  guano  at  the  Chincha 
Islands  during  the  period  in  which  those  deposits  were  under  the  control  of  the  revolu- 
tionary party  headed  by  General  Vivanco.  The  captains  of  the  Lizzie  Thompson  and 
Georgiana  could  not  consequently  suppose  that  they  engaged  in  an  illicit  traffic  in  load- 
ing guano  at  "Pabellon  de  Pica"  and  "  Punta  de  Lobos,"  while,  on  the  contrary,  they 
had  reason  to  think  that  their  commerce  was  legal,  judging  by  the  offic'al  information, 
and  the  acts  of  the  authorities  established  in  Iquique.  Moreover,  the  captain  of  the 
Lizzie  Thompson  could  not  imagine  that  a  Consular  Agent  of  the  Emperor  of  France 
would  engage  in  an  illegal  traffic,  making  him  his  accomplice.  The  same  remark  may 
be  made  respecting  the  captain  of  the  Georgiana,  with  the  only  difference  that  she  was 
chartered  by  a  person  in  whom  the  consular  character  was  not  vested. 

Again,  the  cases  provided  for  by  the  decrees  of  the  Government  of  Peru  respecting 
guano,  refer  to  vessels  which  have  gone  to  the  islands  without  any  license  for  the  pur- 
pose of  taking  guano  clandestinely.  At  all  events,  the  responsibilites,  if  any,  belong  to 
the  local  authorities  of  Iquique,  Pabellon  de  Pica,  arid  Punta  de  Lobos,  or  the  charterers 
of  the  vessels;  but,  certainly,  not  the  vessels  themselves,  or  their  captains,  because 
there  is  nothing  clearer  than  the  legal  principle  that  possession  implies  authority,  and  if 
the  distorted  interpretation  of  an  article  is  proved  or  demonstrated,  the  innocent  instru- 
ment cannot  be  called  to  answer  criminally. 

These  reasons  seem  sufficient  to  the  undersigned  to  prove  that  the  captains,  to  whom 
reference  is  made,  cannot  in  justice  be  considered  as  criminals. 

The  undersigned  is  of  opinion  that  the  only  valid  place  for  the  seizure  effected  accord- 
ing to  the  laws,  is  that  within  which  jurisdiction  is  exercised;  and  that  this  may  be  per- 
fect it  is  necessary  that  the  party  exercising  it  be  in  actual  possession  of  the  place.  And 
now,  it  is  very  well  known  that  for  nearly  two  years  the  peace  of  the  republic  of  Peru 
has  been  disturbed  by  a  revolution,  and  that  the  party  opposed  to  the  government  at 
Lima,  has  been  in  possession  of  various  parts  of  the  country  alternately,  the  city  of 
Arequipa  being  the  nucleus  of  this  party,  as  it  probably  is  at  the  present  moment. 
There  exist,  consequently,  in  the  centre  of  the  republic  two  hostile  parties,  one  of  which 
defends  the  government  of  Lima,  and  the  other  aims  to  substitute  it  by  another  adminis- 
tration, by  means  of  an  outbreak. 

It  is  undeniable  that  the  grand  principle  upon  which  all  republican  institutions  are 
based,  is  that  all  power  is  vested  in  the  people,  and  emanates  from  them  :  they  frame 
the  constitution  of  the  state,  and  appoint  or  select  the  executive  part  of  the  government. 
The  suffrage  is  the  regular  and  constitutional  manner  of  expressing  this  election  ;  but, 
unfortunately,  in  Peru  the  changes  which  have  succeeded  one  another  in  their  adminis- 
trations have  had  their  origin  in  revolution.  These  revolutions  have  been  commenced, 
almost  always,  by  means  of  an  armed  insurrection,  in  which  the  chief,  after  having  se- 
cured the  support  of  a  certain  number  of  partisans,  has  been  proclaimed  by  them  or  has 
proclr.imed  himself  president  ad  interim,  under  different  names  ;  has  formed  a  ministry, 
jued  decrees,  and  exercised  other  acts  of  executive  authority.  The  necessary  result  of 


these  acts  has  been  civil  war,  and  during  the  many  which  have  disturbed  the  peace  of 
the  nation,  the  revolutionary  parties  have  not  hesitated  to  appropriate  the  property  of 
the  nation  to  sustain  their  cause.  The  party  of  Vivanco  has  followed  the  same  course 
during  the  present  revolution.  The  undersigned  is  very  far  from  wishing  to  express  any 
opinion  in  regard  to  the  merits  of  such  a  system,  and  his  reflections  have  no  other  ob- 
ject than  to  call  the  attention  of  H.  E.  the  Minister  of  Foreign  Affairs  to  the  fact  that 
Peru  is  in  a  state  of  civil  war.  And  now,  according  to  the  modern  doctrines  of  inter- 
national right,  the  contending  parties  enjoy  all  the  rights  of  belligerents,  and  the  due 
respect  of  neutral  nations.  In  virtue  of  these  rights,  the  party  opposed  to  the  existing 
government  has  always  taken  possession  of  the  available  and  tangible  property  of  the 
nation,  as  a  means  of  raising  funds;  has  issued  vales  (bonds),  pledging  for  their  pay- 
ment the  property  and  resources  of  the  country;  has  seized  the  money  deposited  in  the 
Custom-Houses,  discounted  the  notes  signed  by  merchants  in  payment  of  duties  on  mer- 
chandise imported,  and  has  exercised  other  acts  of  sovereignty  which,  at  a  later  period, 
have  generally  been  recognized  by  the  Peruvian  nation  on  the  re-establishment  of  peace 
in  the  country.  Such  has  been  the  case  during  the  present  revolution,  in  which  there 
have  been  entries  of  merchandise,  alternately  by  the  government  and  by  the  revolution,  in 
the  Custom-Houses  of  Islay,  Payta,  Huancacho,  and  San  Jose  de  Lambayeque.  The  same 
thing  has  occurred  with  respect  to  the  guano.  This  substance  is  the  property  of  the 
Peruvian  nation,  and  yet  Vivanco,  while  he  was  in  possession  of  the  Chincha  Islands, 
sold  and  expoited  the  guano  from  those  deposits,  notwithstanding  the  prohibitory  de- 
crees of  the  Government  of  Lima ;  and  the  undersigned  understands  that  the  sentences 
of  the  tribunals  in  Chile  and  Belgium  have  been  unfavorable  to  the  reclamations  made 
by  the  government  against  the  cargoes  of  guano  shipped  in  this  manner  for  those  coun- 
tries. The  undersigned  will  not  enter  upon  the  question  as  to  whether  there  is  or  is  not 
claim  to  those  cargoes,  because  that  belongs  to  the  judicial  authorities  of  the  countries 
to  which  they  have  been  sent,  but  what  he  holds  is,  that  the  party  of  the  opposition  in 
Peru,  engaged  as  it  is  in  a  civil  war,  is  as  such  entitled  to  all  the  rights  of  war. 

And  one  of  those  rights,  without  doubt,  is  the  jurisdiction  maintained  over  the  terri- 
tory which  it  occupied,  and  the  change  of  local  authorities,  and  exercise  of  official  acts,  as 
the  consequence  of  this  possession  and  jurisdiction. 

When  the  party  of  Vivanco  took  possession  of  that  part  of  Peru  which  embraces  the 
port  of  Jquique,  Pabellon  de  Pica,  and  Punta  de  Lobos,  the  representatives  of  that  party 
established  local  authorities,  and  occupied  these  last  points,  which,  foim  the  principal 
portion  thereof,  placing  soldiers  upon  them.  Consequently,  during  this  time  the  au- 
thority and  jurisdiction  of  the  government  of  Lima  were  without  effect. 

Under  these  circumstances,  the  American  vessels  Georgia.ua  and  Lizzie  Thompson  ar- 
rived at  the  port  of  Iquique.  As  belonging  to  a  foreign  and  neutral  country,  it  was 
not  for  them  to  question  the  Government  and  its  local  authority,  much  less  when  it 
was  openly  respected  by  H.  B.  M.'s  war  steamer  Retribution. 

The  captains  of  these  vessels  consequently  accepted  the  charters  which  were  offered 
them,  and  sailed  for  Punta  de  Lobos  and  Pabellon  de  Pica,  with  their  licenses  issued  by 
the  Custom-IIouse  of  Iquique,  which  port  was,  at  the  period  when  the  capture  was 
effected  by  the  Tumbes,  under  the  contiol  and  jurisdiction  of  the  revolutionary  party  of 
Peru.  The  capture  executed  by  the  instructions  of  the  Minister  of  the  Treasury  in 
Lima  was  not,  therefore,  in  the  conception  of  the  undersigned,  a  perfect  and  regular 
right,  much  less  when  we  consider  the  fact  that  the  Government  of  Lima  was  deprived 
of  its  jurisdiction  in  that  part  of  the  republic. 

3d.  The  undersigned  considers  that  the  manner  in  which  the  seizure  or  capture  of  the 
vessels,  and  their  transfer  to  Callao,  was  effected,  was  unjustifiable,  cruel,  and  illegal. 

Referring  to  the  declarations  of  Captains  Wilson  and  Reynolds,  it  will  be  seen  that  the 
Lizzie  Thompson  arrived  at  Pabellon  de  Pica  on  the  25th  of  December  last,  and  found 
there  a  Governor,  a  Port  Captain,  subaltern,  employees,  and  thirty  or  more  soldiers  of 


43 

the  revolutionary  party  ;  that  hie  vessel  was  examined  at  anchor  by  the  Port  Captain, 
and  that  he  commenced,  on  the  4th  of  January,  to  load  with  guano,  which  article  was 
delivered  by  the  authorities  on  the  beach.  Farther  on,  Captain  Wilson  adds,  that  during 
his  stay  at  Pabellon  de  Pica,  the  place  was  twice  visited  by  the  Peruvian  war  steamer 
Apurimac,  and  "  that  a  small  Peruvian  steamer,  also  armed,  was  there  at  anchor,  almost 
'•  all  the  time  that  the  vessel  remained."  He  also  adds,  that  both  vessels  visited  his, 
and  examined  his  papers,  saying  that  they  were  in  due  form. 

The  Georgiana  arrived  at  Punta  de  Lobos  on  the  3d  of  January,  and  began  to  load 
with  guano  on  the  llth,  it  being  supplied  on  the  beach  by  the  authorities,  as  her  cap- 
tain has  informed  the  undersigned. 

It  does  not  appear  that  either  of  the  two  vessels  was  provided  with  arms  of  any  kind 
which  they  would  probably  have  procured  if  they  had  been  prepared  for  any  contraband 
operation.  This  proves,  more  and  more,  that  the  captains  considered  themselves  as 
neutrals,  and  in  the  exercise  of  a  legal  commerce. 

Further  en,  the  declarations  of  the  captains  show,  that  the  Tumbes  arrived  at  Pabellon 
de  Pica  and  Punta  de  Lobos  on  the  24th  of  the  last  month,  in  the  morning,  very  early, 
and  sent  her  boats  with  armed  men  to  take  possession  of  them,  and  place  them  under 
her  control. 

The  captain  of  the  Lizzie  Thompson  declares,  that  the  official  and  people  of  the 
Tumbes  conducted  themselves  in  a  violent  manner,  and  on  boarding  his  vessel,  the  sol- 
diers aimed  their  muskets  at  him,  and  threatened  him  with  death  if  he  opposed  the 
least  resistance. 

The  Georgiana,  which  is  the  smaller  vessel,  and  whose  crew  was  composed  of  nine 
persons,  was  also  boarded,  and  her  captain  forced  to  go  on  board  the  Tumbes,  where  he 
was  told  by  the  commander  that  if  he  did  not  immediately  comply  with  his  orders,  he 
would  destroy  his  vessel,  for  which  purpose  he  had  the  cannons  doubly  charged. 

Captains  Wilson  and  Reynolds  declare,  at  the  same  time,  that  they  were  taken  from 
their  vessels,  and  conducted,  as  prisoners,  on  board  the  Tumbes  ;  that  their  crews  were 
forcibly  taken  from  their  vessels,  and  put  iu  their  boats,  remaining  abandoned  on  the 
sterile  and  inhospitable  coast,  without  provisions  or  water.  rlhe  crew  of  the  boat  of 
the  Lizzie  Thompson  were  also  deprived  of  her  mast  and  sails,  and  when  they  went 
alongside  of  the  Tumbes,  they  were  repulsed,  and  told  to  ask  assistance  from  the  armed 
men  in  possession  of  their  vessel ;  returning  there,  the  boat  was  fired  upon  by  the  sol- 
diers, and  one  of  the  men  wounded  with  a  knife.  And  thus,  eight  men  of  the  Lizzie 
Thompson,  and  six  or  seven  of  the  Georgians,  were  abandoned,  without  provisions  or 
water,  at  a  distance  of  forty  or  fifty  miles  from  any  point  where  they  could  procure  the 
necessary  assistance,  since  Iquique  itself  is  unprovided  with  other  than  water  distilled  in 
the  city.  The  idea  of  destroying  merchant  vessels,  and  leaving  their  owners  in  such  a 
situation,  is  so  repulsive,  that  the  undersigned  cannot  believe  that  the  commander  of  the 
Tumbes  had  instructions  from  his  government  so  to  proceed.  Such  conduct  can  in  no 
manner  be  justified.  If  the  vessels  be  considered  as  neutrals  in  the  territory  of  a  party 
at  war,  their  capture  is  illegal,  since  they  committed  no  fault  which  authorized  their  de- 
tention. If,  on  the  other  hand,  they  were  seized  for  contravening  the  fiscal  laws,  their 
crews  should  at  least  have  been  left  on  board,  since  they  were  in  no  wise  responsible, 
and,  moreover,  in  executing  the  capture,  the  accused  could  not  be  deprived  of  the 
presence  of  persons  who  might  serve  for  their  defence,  or  their  cause. 

Furthermore,  if  the  commander  of  the  Tumbes  had  orders  to  destroy  the  vessels,  as 
he  told  their  captains,  he  could  not  execute  them,  since  they  were  contrary  to  law,  be- 
cause, being  American  property,  the  Government  of  Peru  had  no  right  of  absolute  con- 
trol over  them  until  they  were  condemned  by  a  competent  tribunal.  Such  is  the  law  in 
the  cases  of  seizures  made  in  time  of  war,  and  particularly,  with  vessels  seized  according 
to  the  laws  of  all  civilized  nations. 

For  these  reasons,  and  others  easily  deduced,  the  undersigned  in  his  note  to  H.  E., 


under  the  date  of  the  1st  inst.,   asked,  as  a  right,  the  liberation  of  the  captains  of  the 
Lizzie  Thompson  and  the  Georgiana. 

Considering,  therefore,  that  the  capture  of  the  Lizzie  Thompson  and  the  Georgiana, 
the  first  at  Pabellon  de  Pica,  and  the  second  at  Punta  de  Lobos,  on  the  24th  of  January 
last,  by  the  Peruvian  war  steamer  Tumbes,  under  instructions  from  the  Minister  of  the 
Treasury  of  Peru,  was  unjustifiable  and  without  perfect  right ;  the  undersigned  solemnly 
protests  against  the  capture  and  detention  of  the  said  vessels,  for  which  reason  the  un- 
dersigned notifies  H.  E.  the  Minister  of  Foreign  Affairs  of  Peru,  that  he  holds  the  Peru- 
vian Government  responsible  for  all  the  consequences  of  that  capture  and  detention,  to 
the  United  States,  as  well  as  to  the  owners  of  the  Lizzie  Thompson  and  the  Georgiana ; 
and  also  for  all  the  losses  or  damages  suffered  by  said  owners,  and  captains,  and  crews 
of  said  vessels,  in  consequence  of  their  capture  and  detention  by  the  Peruvian  Govern- 
ment. 

The  undersigned  has  the  honor  on  this  occasion  to  renew  to  H.  E.  the  Minister  of  For- 
eign Affairs,  the  assurance  of  his  highest  consideration. 

(Signed)  J.  RANDOLPH  CLAY. 


REPUBLIC  OF  PFRU, 
Department  of  Foreign  Affairs. 
LIMA,  18th  February  1858. 

The  undersigned  has  submitted  to  the  Council  of  Ministers  the  contents  of  the  note  of 
H.  E.  the  Envoy  Extraordinary  and  Minister  Pelipotentiary  of  the  United  States,  of  the 
9th  inst.,  referring  to  the  seizure  and  proceedings  against  the  American  vessels  Lizzie 
Thompson  and  Georgiana,  and  has  received  special  instructions  to  reply  to  H.  E.  in  the 
terms  following: 

The  tenor  of  the  aforesaid  note  of  Mr.  Clay  has  produced  great  surprise  and  profound 
regret  to  the  Council,  by  the  form  and  terms  in  which  it  is  conceived,  the  ground  assigned 
for  it,  and  finally,  by  the  object  to  which  it  is  directed ;  and  before  entering  upon  the 
matter,  the  undersigned  would  recall  to  H.  E.  Mr.  Clay,  certain  act?,  the  merits  and  con- 
spicuity  of  which  suffice  to  show  that  the  Government  of  Peru  could  not,  and  ought  not, 
to  have  anticipated  such  a  communication  from  H.  E.,  while  the  undersigned  cordially 
assures  II.  E.  Mr.  Clay,  that  in  the  course  of  the  delicate  communication  which  he  is 
obliged  to  make  in  behalf  of  the  grave  rights  whose  illustration  and  defense  fall  to  his 
charge,  it  is  his  intent  to  conduct  the  same  with  the  consideration  and  respect  so  justly 
due  to  the  high  position  of  the  cabinet  at  Washington,  and  their  worthy  representative, 
to  wliom  the  undersigned  addresses  himself. 

A  few  days  after  the  undersigned  had  assumed  charge  of  the  Departments  of  Foreign  Af- 
fairs, Treasury ,  and  Commerce,  and  while  the  Chincha  Islands  were  under  the  control  of  the 
revolted  naval  forces,  he  conferred  with  H.  E.  the  Provisional  President,  upon  the  necessary 
means  for  making  known  in  the  republic,  and  in  all  countries  procuring  guano  from  Peru, 
the  firm  and  decided  resolution  which  the  government  had  adopted,  to  follow  up  by  all 
the  means  in  its  power  the  illegal  and  fraudulent  exportation  of  that  fertilizer  which 
might  be  made  by  force,  in  virtue  of  null  and  aggressive  contracts  made  with  the  rebels 
or  their  agents. 

For  tin's  purpose  there  were  reprinted  in  the  official  periodical,   El  Peruano,  of  the 

27th  of  February  of  last  year,  Number  48,  Vol.  32,  a  series  of  the  principal  laws  and 

decrees  relative  to  the  regulations  for  the  sale  and  traffic  in  said  fertilizer,  and  penalty 

incurred  by  those  infringing  the  same  ;  and  on  the  28th  of  the  same  month,  the  under- 

nddn-sfi'd  a  circular  to  the   Diplomatic  Agents  and  Consuls  of  the  Republic  in 

n  countries,  to  the  end  that  they  might  give   due  publicity  to  the  laws  and  decrees 

referred  to,  to  avoid  in  this  manner  even  the  most  trival  pretext  of  good  faith  which  the 


contrabandists  might  set  up.  In  fact,  the  republication  was  made  in  France,  England, 
Belgium,  Spain,  the  United  States,  and  the  Spanish  American  countries,  it  being  \\orthy 
of  note  tliat  in  Paris,  by  authority  of  H.  E.  Count  Walewski,  Minister  of  Foreign  Affairs 
of  the  Empire,  the  publication  of  the  same  was  directed  to  be  made  in  the  official  gazette 
El  Monitor ;  neither  in  consequence  of  this  publication,  or  of  the  reiterated  manifesta- 
tions which  the  undersigned  had  occasion  to  make  to  the  Diplomatic  Corps  resident  in 
this  capital,  of  the  intention  of  the  government  to  proceed  in  strict  conformity  with 
the  aforesaid  laws  and  decrees,  to  prosecute  and  seize  the  contraband  guano  vessels,  was 
the  slightest  observation  made  in  the  way  of  objection,  since,  without  doubt,  all  recog- 
nized the  perfect  right  which  sustained  the  only  legitimate  and  recognized  government 
of  the  republic  in  defending  the  national  property,  threatened  and  invaded  by  the  most 
scandalous  vandalism. 

The  vessels  of  war  Loa,  Tumbes,  Yzcuchaca,  ffuaroz,  and  Guise,  which  were  at  the 
Chincha  Islands,  having  been  restored  to  obedience  to  the  government,  all  the  foreign 
shipping  lying  there,  and  loading  guano  under  contract  with  the  rebels,  precipitately  fled, 
recognizing  by  this  single  act,  both  their  culpability,  and  the  right  of  the  government  to 
follow  and  seize  them — a  circumstance  all  the  more  notable,  when,  at  this  juncture,  there 
were  foreign  vessels  of  war  at  the  Islands,  and  among  them  the  American  corvette  John 
Adams,  on  whose  protection  the  fugitive  shipping  would  have  relied,  had  they  not  been 
clearly  convinced  that  they  had  no  right  to  such  protection,  and  that  they  would  not  sus- 
tain speculations  in  every  view  reprobated  and  criminal. 

The  government  having  sent  the  war  steamer  Ucayali  to  the  island,  for  the  purpose 
of  reinstating  the  legal  authorities,  and  re-establishing  the  order  which  the  rebels  had 
disturbed,  on  the  13th  of  May  her  commander  made  known  a  message  which  he  had 
received  from  the  captain  of  the  John  Adams,  "that  whatever  the  flag  of  a  vessel  in 
"  which  a  North  American  citizen  was  loading  guano,  it  would  be  protected  by  him."  On 
account  of  this,  the  undersigned,  desirous  of  avoiding  any  disagreeable  question  with  the 
Government  of  the  Union,  communicated  to  H.  E.  Mr.  Clay,  at  an  interview  sought  for 
the  purpose,  the  contents  of  the  communication  from  the  commander  of  the  Ucayali,  with 
other  information,  setting  forth  the  grave  abuses  committed  by  the  commander  of  the 
John  Adwns,  at  the  islands.  At  this  interview  the  undersigned  also  laid  before  H.  E. 
the  opinion  given  by  the  lawyers  of  the  United  States,  in  reply  to  queries  addressed  to 
them  by  the  consignee  of  guano  residing  in  Baltimore,  touching  the  right  of  the  Peru- 
vian Government  to  claim  and  recover  the  cargoes  of  this  fertilizer  taken  under  author- 
ity from  the  rebels,  and  imported  to  the  markets  of  the  Union,  which  opinion,  in  brief, 
is  conceived  in  the  following  terms  : 

"  Theoretically  considered,  this  question  is  very  simple.  The  Peruvian  Government, 
"  dejure  et  de  facto,  the  only  one  which  can  appear,  as  such  government,  before  foreign 
"  powers,  is  to-day  represented  by  the  Liberator  Grand  Marshal  D.  Ramon  Castilla. 
"  Mr.  Vivauco,  who  has  no  possession  of  public  business,  who  has  no  assistance  from 
"  the  constituted  powers  of  the  state,  who  exercises  no  authority  in  the  greater  part  of 
"  the  territory  of  the  republic,  is  not,  and  cannot  be  regarded  in  any  manner  as  de 
"facto  exercising  the  executive  power  of  Peru.  That  he  has  possession  of  two  or  three 
"  cities  or  provinces,  and  that  he  has  taken  some  vessels,  are  of  no  importance  in  a  legal 
''  view ;  his  acts  are  not  respected  by  other  nations  or  their  tribunals,  nor  have  they 
"  more  validity  than  would  be  given  to  the  acts  of  any  other  person  who  by  force  ob- 
"  tained  possession  of  any  part  of  the  Peruvian  territory,  and  disposed  of  the  national 
"  property,  on  which  he  could  lay  his  hands.  Consequently,  an  agent  of  the  Govern- 
"  ment  of  Peru,  diplomatic  or  consular,  has  the  right  to  embargo  or  recover  the  cargoes 
"of  guano  which  are  taken  from  the  republic  by  means  of  sales  or  contracts,  of  every 
"nature,  made  by  D.  Manuel  Ignacio  Vivanco." 


And  H.  E.  Mr.  Clay,  conducting  with  the  rectitude  and  enlightenment  of  which  he  had 
given  so  many  proofs,  reprobated  the  conduct  of  the  commander  of  the  John  Adams, 
promising  the  undersigned  that  he  would  obtain  from  his  government,  opportune  and 
proper  reparation,  recognized  the  right  of  the  Government  of  the  undersigned  to  seize 
and  prosecute  the  vessels  which  went  to  load  guano  without  license,  and  the  requisites 
required  by  the  laws  of  the  country;  and  H.  E.,  in  corroborating  by  his  sanction  the 
aforesaid  opinion  of  the  American  lawyers,  carried  his  delicate  condescension  to  the  ex- 
treme of  sending  his  secretary,  Mr.  Caverley,  a  gentleman  versed  in,  and  well  under- 
standing the  legislation  of  his  country,  to  the  end  that  he  should  amplify  and  ratify  said 
opinion,  as  in  a  conversation  with  the  undersigned  he  did,  in  a  lucid  and  satisfactory 
manner. 

At  a  later  period,  on  account  of  the  publication  of  the  Convention  of  the  21st  of  M;«y, 
of  last  year,  celebrated  by  the  Government  of  Peru  with  the  Charges  d Affaires  of  Eng- 
land and  France,  and  of  having  stipulated  that  they  should  go  into  effect  from  the  date 
of  its  signature,  that  is,  without  the  necessity  of  previous  ratification,  H.  E.  the  Envoy 
Extraordinary  and  Minister  Plenipotentiary  asked  an  interview  with  the  undersigned 
with  the  exclusive  object  of  inquiring  "  if,  in  case  American  vessels  went  to  load  guano, 
"  at  the  deposits  of  the  republic,  without  the  competent  license  and  requisites  required 
"  by  existing  laws,  they  would  be  captured,  or  simply  ordered  off  by  the  naval  forces  of 
'•  England  and  France  ?"  And  the  undersigned  having  replied,  referring  entirely  to  the 
terms  of  the  Convention,  by  which  it  was  simply  stipulated  that  they  should  prevent  the 
illegal  and  fraudulent  exportation  of  guano,  H.  E.  Mr.  Clay  concluded  by  the  formal 
declaration,  "that  he  only  recognized  the  right  of  Peruvian  vessels  to  capture  those  of 
"America  which  went  without  license  from  the  government  and  the  legal  requisites,  to 
"  the  guano  deposits  of  the  Republic." 

From  the  facts  aforesaid,  we  necessarily  deduce  the  conclusion  that  foreign  governments, 
their  agents,  and  especially  and  particularly  H.  E.  the  Envoy  Extraordinary  and  Minister 
Plenipotentiary  of  the  United  States,  have  respected  the  perfect  right  which  the  legiti- 
mate and  recognized  Government  of  Peru  profess  to  follow,  and  capture  the  vessels 
which,  without  the  competent  license  and  requisites  required  by  the  existing  laws,  are 
found  engaged  in  the  illicit  and  fraudulent  importation  of  a  fertilizer  which  constitues 
the  principal  branch  of  national  resource. 

And  it  is  to  be  noted,  that  in  sustaining  and  preserving  intact  so  undisputed  a  right, 
not  only  is  the  independence  and  sovereignty  of  the  State  secured,  but,  so  to  express  it, 
her  existence,  her  future,  and  her  credit,  depend  upon  it ;  since  if — which  it  is  to  be 
hoped  may  never  be — the  lamentable  precedent  of  impunity  and  exemption  in  favor  of 
-the  accomplices  and  abettors  in  the  fraudulent  and  unjustifiable  exportation  of  guano, 
under  the  protection  of  the  heads  of  a  faction,  or  of  the  commanders  of  revolted  vessels, 
acting  against  the  republic,  should  be  recognized,  very  soon  would  that  source  of 
wealth  be  dissipated,  which  is  pledegl  to  the  payment  of  the  domestic  and  foreign 
debt,  and  which,  at  the  same  time,  constitutes  the  guarantee  of  commerce,  the  source  of 
industry,  and  the  principle  of  the  future  advancement  of  Peru,  and  hence,  its  preserva- 
tion being  of  general  interest. 

Thus,  there  is  no  impropriety  in  the  assertion  that  the  reclamation  of  H.  E.  Mr.  Clay 
has  caused  great  surprise  and  profound  regret  to  the  Council  of  Ministers,  since  it  might 
have  been  anticipated  from  any  one  rather  from  H.  E.,  if  attention  be  paid  to  the  afore- 
named antecedents  ;  and  notwithstanding  that  they  alone  would  tend  to  weaken  argu- 
ments which  are  repugnant  to  the  previous  convictions  of  their  respectable  author,  as 
he  has  thought  proper  to  produce  them  without  regard  to  his  own  judgment,  the  under- 
signed will  perform  the  duty  of  answering  them. 

The  cardinal  points  are  these,  on  which  H.  E.  the  Envoy  Extraordinary  and  Minister 
Plenipotentiary  founds  the  protest  which  he  has  been  pleased  to  make  in  his  note  of  the 
9th  instant,  to  wit : 


47 

1st.  "That  neither  of  the  vessels  or  their  captains  were  engaged  in  a  scandalous  and 
''  criminal  contraband  of  guano,  infringing  the  fiscal  laws,  regulations  of  commerce,  and 
"  of  coast  trade  of  Peru." 

2d.  "  That  the  capture  of  the  North  American  vessels  Lizzie  Thompson  and  Georgiana, 
"  by  the  Tumbes,  by  virtue  of  instructions  from  the  Minister  of  the  Treasury  in  Lima, 
"  was  not  of  clear  right,  and  consequently  was  irregular." 

3d.  "  And  finally,  that  the  mode  of  enforcing  this  confiscation  or  capture,  and  their 
"being  taken  to  the  port  of  Callao,  was  unjustifiable,  cruel,  not  to  say  barbarous,  and 
"  illegal." 

The  undersigned,  at  the  risk  of  being  considered  diffuse,  will  endeavor  to  successfully 
confute  those  propositions. 

Whatever  may  have  been  the  point  of  departure  of  the  American  vessels  Lizzie 
Thompson  and  Georgiana,  and  the  circumstances  which  took  place  in  the  making  of  their 
last  charter  parties,  it  is  a  well-known  and  unquestionable  fact  that  those  vessels,  when 
they  were  captured  by  the  Tumbes,  were  lying  at  Punta  de  Lobos  and  Pabellon  de 
Pica,  loading  guano  for  exports  to  foreign  parts ;  and  this  fact,  without  the  necessity  of 
much  commentary,  is  more  than  sufficient  to  prove  that  said  vessels  and  their  captains 
were  engaged  in  a  scandalous  and  criminal  contraband,  infringing  the  fiscal  laws,  regula- 
tions of  commerce,  and  of  coast  trade  of  Peru. 

In  fact,  by  the  fiscal  laws  promulgated  in  the  republic  and  republished  in  the 
Peruano  the  approach  of  foreign  vessels  to  the  national  deposits  of  guano  is  expressly 
prohibited  ;  the  loading  and  sale  of  guano  is  in  like  manner  reserved  to  the  consignees 
contracting  with  the  government,  who  alone  can  load  in  said  islands,  with  the  obligation 
to  take  out  previous  special  licenses  from  the  government,  and  sail  from  the  port  of 
Callao,  observing  the  other  formalities  prescribed  by  the  aforesaid  laws,  which  impose 
the  penalty  of  confiscation,  besides  other  very  severe  corporal  punishments  to  those  in- 
fringing them.  And  the  provisions  of  these  same  laws  are  reproduced,  in  brief,  in  art. 
213,  chapter  23d  of  the  existing  regulations  of  commerce. 

By  articles  208  and  209  of  this  regulation,  it  is  ordered — "  Vessels  will  be  confiscated 
which  anchor  in  other  ports  than  those  opened  to  foreign  commerce;"  in  articles  1st,  3d, 
and  4th,  if,  in  addition  to  anchoring,  they  disembark  or  receive  correspondence,  persons, 
or  merchandise. 

If,  then,  as  is  true  and  evident,  the  Lizzie  Thompson  and  the  Georgiana  were  surprised 
loading  guano  at  prohibited  deposits  without  license  from  the  government,  and  that  they 
had  anchored  and  disembarked  their  crews  in  ports  which  are  not  opened  to  foreign 
commerce,  it  is  clear  that  those  vessels  and  their  captains  were  engaged  in  a  scandalous 
and  criminal  contraband  of  guano,  infringing  the  fiscal  laws,  regulations  of  commerce, 
and  of  the  coast  trade  of  Peru.  The  undersigned  will  undertake  in  due  course  to 
refute  the  feeble  arguments  with  which  H.  E.  Mr.  Clay  aims  to  exculpate  the  aforesaid 
captains. 

The  perfect  right  with  which  the  capture  of  the  Lizzie  Thompson  and  the  Georgiana 
were  executed  by  virtue  of  instructions  from  the  Peruvian  Government,  issued  by  the 
proper  medium,  the  department  of  the  treasury,  (and  not  simply  of  the  Minister,  as  H. 
E.  Mr.  Clay,  being  misinformed,  supposes),  is  derived  from  diverse  and  just  actions  which 
simultaneously  have  provoked  and  authorized  this  capture. 

In  fact  the  captured  vessels  have  not  only  committed  the  common  offence  of  a  fiscal 
contraband,  but,  violating  the  strict  neutrality  to  which  they  were  pledged,  out  of  re- 
spect to  their  flag,  they  have  been  receivers  of  national  property,  criminally  and  iniquit^ 
ously  usurped  and  fraudulently  obtained;  they  have  lent  their  co-operation  and  assist- 
ance to  the  rebels  who  have  risen  against  the  only  legitimate  government  recognized  as 
such  by  that  of  their  nation,  because  the  trifling  product  of  those  depredations  was  em- 
ployed in  procuring  provisions,  military  stores,  money,  and  articles  contraband  of  war 


for  the  revolted  ship  Apurnnac ;  they  have  loaded  guano  from  prohibited  deposits,  and 
have  anchored  and  trafficed  in  ports  which  are  not  opened  to  foreign  commerce. 

Thus  the  capture  of  the  Lizzie  Thompson  and  the  Georgiana  was  clearly  right,  not 
only  on  account  of  the  injury  and  offence  they  have  committed  against  the  republic, 
assaulting  her  property  or  infringing  her  laws,  but  by  the  violation  of  their  neutrality, 
converting  themselves  into  actual  enemies. 

The  sovereign  power  which  independent  states  possess  to  regulate  foreign  commerce 
in  their  territories,  and  to  fix  penalties  for  the  observance  of  the  same,  being  an  axiom 
of  international  law,  as  is  also  the  power  by  which  the  sovereign  alone  can  dispose  of 
national  property,  and  the  exercise  of  sovereignty  in  these  countries  which  are  ruled  by 
the  democratic  system,  belonging  properly  and  exclusively  to  the  legislature,  reserving 
to  the  executive  the  duty  of  enforcing  the  regulations  of  commerce  and  laws  relative  to 
the  alienation  of  national  property ;  the  perfect  right  of  the  Government  of  Peru  can- 
not be  called  in  question,  when  it  proceeded  to  order  the  capture  of  these  offending  ves- 
sels, in  observance  of  those  regulations  and  laws  which  have  had  legislative  sanction. 
To  deny,  or  even  to  doubt  this  right,  would  be  equivalent  to  a  denial  of  the  sovereignty 
and  independence  of  the  Peruvian  nation ;  and  the  undersigned  cannot  conceive  that  the 
circumspect  and  upright  representative  of  the  government  founded  by  the  great  Wash- 
ington could  have  entertained  the  intention  of  inflicting  upon  a  sister  and  friendly  re- 
public the  greatest  injury  which  could  be  directed  against  an  independent  state — an  in- 
jury which  would  affect  all  civilized  nations  directly  interested  in  the  preservation,  intact, 
of  their  highest  rights. 

Nevertheless  such  is  the  deduction  which  might  be  drawn  from  the  disastrous  principle 
which  H.  E.  Mr.  Clay  labors  to  establish,  attributing  to  the  commander  of  a  revolted 
vessel  the  power  of  abolishing,  de  facto,  the  fiscal  laws  and  commercial  regulations  of 
the  republic,  authorizing  by  this  violation  the  most  unjustifiable,  treacherous,  and  in- 
iquitous depredation  of  national  property,  while  principle  sustains  the  possession  of  the 
perfect  right  by  the  Government  of  Peru  to  capture  the  Lizzie  Thompson  and  Georgiana, 
surprised  in  so  illicit  a  traffic. 

Before  proceeding  with  the  discussion  it  is  proper  to  rectify  some  statements  set  forth 
by  H.  E.  the  Envoy  Extraordinary  and  Minister  Plenipotentiary,  and  from  which  almost 
all  his  arguments  spring. 

It  is  not  true  that  on  the  arrival  of  the  Lizzie  TJiompson  and  Georgiana  at  the  port  of 
Iquique,  they  there  found  a  Custom-House  established  in  due  form,  while  it  is  a  public 
and  notorious  fact  stated  in  the  papers,  and  which  could  not  have  been  unknown  to  H. 
E.  Mr.  Clay,  that  from  the  moment  the  ship  Apurimac  took  possession  of  that  port,  the 
collector  of  that  Custom-House,  with  all  the  employees  under  him,  abandoned  it,  coming 
to  this  capital,  where  they  still  are;  and  if  it  is  intended  to  classify  as  a  Custom-House 
established  in  due  form  that  which  was  only  a  poor  farce,  performed  bv  the  military 
chief  of  a  revolted  vessel,  who  had  no  other  support  than  that  which  he  obtained  by  the 
fire  of  his  cannons,  it  is  certainly  an  opinion  against  which  the  undersigned  hastens  to 
protest  in  the  most  efficacious  and  energetic  manner. 

And  the  expression  of  that  opinion  is  so  much  more  grave  and  transcendental,  as  being 
founded  on  the  possibility  of  the  existence  of  inferior  authorities  de  facto,  such  as  the 
most  distinguished  writers  have  not  mentioned,  in  dealing  of  government  de  facto — a 
distinction  which  the  undersigned  makes,  not  because  he  would  recognize  as  a  govern- 
ment de  facto  the  leader  of  a  faction  reduced  to  the  narrow  limits  of  the  city  of  Arequipa, 
but  because  the  so-called  Custom-House  established  in  due  form  in  the  port  of  Iquique, 
to  which  H.  E.  Mr.  Clay  refers,  was  not  constituted  even  by  that  leader,  but  by  D.  Felipe 
Rivaa,  comrnander-in-chief  of  the  revolted  naval  forces. 

And  can  the  enlightened  representative  of  a  nation,  among  the  most  elevated  in  the 
scale  of  civilization,  pretend  that  that  chief  had  the  power  to  abolish  the  fiscal  laws  and 
the  commercial  regulations,  and  to  dispose  of  national  property,  usurping  the  loftiest 


functions  of  sovereignty  ?  Can  he  pretend  that  null  and  offensive  acts  of  so  spurious  an 
origin  may  produce  legal  effects  ? 

But  there  is  more ;  the  licenses  obtained  by  the  Lizzie  Thompson  and  Georgiana 
to  load  guano  at  the  "  Punta  de  Lobos  "  and  "  Pabellon  de  Pica  "  were  issued  by  D. 
Felipe  Rivas,  the  so-called  commander-in-chief  of  the  navy  ;  and  could  the  captains  of 
those  vessels  ignore  the  fact  that  the  regulations  of  commerce  prohibited  access  to  the 
guano  deposits,  and  to  ports  not  open  to  foreign  commerce  ?  Certainly  not ;  because 
they  could  not  be  ignorant  of  the  mercantile  laws  and  custom-house  regulations  of  the 
country  of  their  destination,  and  because,  if  such  ignorance  be  admitted  as  an  exception, 
all  the  ordinances  and  fiscal  statutes  would  be  brought  to  the  ground,  and  contraband 
would  be  authorized  by  impunity. 

It  is  true,  and  the  undersigned  is  pleased  to  believe  that  H.  E.  Mr.  Clay  will  recognize 
this  truth,  that  it  was  not  within  the  sphere  of  a  foreign  captain  to  interfere  in  the  qual- 
ification of  authorities  existing  in  the  republic,  but  while  it  was  not  only  permitted,  it 
was  obligatory  upon  them,  to  know  the  fiscal  laws,  the  regulation  of  commerce  and 
customs,  because  it  was  their  positive  duty  to  observe  and  comply  with  them. 

Where  then  is  the  law,  decree,  or  resolution  which  annuls  the  aforesaid  provisions  rel- 
ative to  the  exportation  and  sale  of  guano,  the  place  from  which  it  is  permitted  to  ex- 
tract it,  ports  open  to  foreign  commerce,  &c.,  &c.  ?  Certainly  it  cannot  be  found  ;  nor 
has  the  same  leader,  Don  Manuel  Ignacio  Vivanco,  in  the  extravagance  of  his  pretensions, 
gone  to  the  extreme  of  dictating  such  resolutions. 

The  examples  adduced  by  H.  E.  Mr.  Clay,  relative  to  custom-house  clearances,  dis- 
count of  notes,  and  disposal  of  public  moneys,  which  have  taken  place  under  the  rule  of 
the  rebels,  are  in  no  manner  applicable  to  the  case  in  question  ;  as  they  were  done  under 
force  and  coercion,  and  observing  the  laws  and  fiscal  regulations  and  of  customs,  although 
the  authority  in  person  was  illegitimate,  and  which  will  in  due  time  be  held  responsible 
before  the  nation. 

The  undersigned  cannot  pass  unnoticed  the  allusion  which  H.  E.  the  Envoy  Extraor- 
dinary and  Minister  Plenipotentiary  has  been  pleased  to  make  to  the  internal  dissensions 
which  unfortunately  have  agitated  this  country,  so  worthy  of  a  better  fate.  And  since 
H.  E.  has  understood  that  his  high  mission  and  character  do  not  authorize  him  to  inter- 
fere in  domestic  politics,  the  undersigned  confines  himself  to  reminding  H.  E.  that  if,  as 
he  declares,  popular  suffrage  is  the  finest  fountain  of  democratic  governments,  such  was  the 
origin  of  the  provisional  government  created  by  the  eminently  popular  revolution  of  1854, 
which  was  then  founded  on  the  constitution  of  the  republic,  and  now  sustained  by  the  vote 
of  the  people,  who  have  risen  in  mass  to  put  down  the  hydra  of  rebellion,  and  of  whose 
heroic  efforts  H.  E.  Mr.  Clay  has  had  ocular  demonstration,  in  the  conflict  of  the  22d  of 
April  last,  in  Callao. 

H.  E.  should  also  have  taken  into  account  that  this  eminently  democratic  government 
is  the  only  one  recognized  and  cordially  congratulated  by  that  of  the  American  Union  : 
is  the  only  one  to  which  H.  E.  has  addressed  himself  to  ask  and  obtain  the  reparation 
due  to  his  fellow-citizens ;  and  that  with  this  same  government  he  has  adjusted  and 
celebrated  international  conventions,  and  that  it  is  this  government  whose  authority  the 
citizens  of  the  Union  must  respect. 

In  fine  the  perfect  right  of  the  Peruvian  Government  to  capture  the  Lizzie  Thompson 
and  the  Georgiana  has  not  only  its  origin  in  the  principles  of  universal  justice  and  inter- 
national laws,  to  which  the  undersigned  refers,  but  also  in  the  express  provisions  of  the 
existing  treaty  of  July,  1851,  which  form  a  positive  right,  and  in  which,  according  to  ar- 
ticle 9th,  "  the  regulations  of  the  coasting  trade  are  respectively  reserved  to  the  partic- 
"  ular  laws  of  either  party,"  and  according  to  article  22d  "it  is  only  permitted  that  their 
"  vessels  shall  frequent  the  coasts,  ports,  and  places,  in  which  foreign  commerce  is  per- 
"  mitted,"  and  according  to  article  1st  not  only  was  neutrality  stipulated,  but  perfect 


50 


friendship  ou  the  part  of  the  government  of  the  Union  and  its  citizens  towards  that  of 
Peru. 

In  relation  to  the  manner  in  which  the  capture  of  the  Lizzie  Thompson  and  Georgians 
and  their  conveyance  to  the  ports  of  Callao  were  effected,  H.  E.  Mr.  Clay,  misled,  no 
doubt,  by  sinister  information,  or  carried  away  by  his  zeal  in  the  defence  of  his  fellow, 
citizens,  has  deviated  from  the  temperate  tone,  from  the  reserve  and  caution  which  have 
so  strongly  recommended  him,  when  lie  goes  so  far  as  to  characterize  them  as  unjustifi* 
able,  cruel  (not  to  say  barbarous),  and  illegal. 

Such  definitions,  the  more  grave  the  higher  the  source  from  which  they  proceed, 
should  not  have  been  ventured  upon,  unless  sustained  by  evident  proofs  of  the  abuses 
charged ;  but  if  H.  E.  considers  as  such  abuse  the  act  of  leaving  on  shore  the  crews, 
which,  without  great  danger,  the  Tumbes  could  neither  bring  nor  keep  in  custody,  if 
that  act  be  exaggerated,  and  in  certain  degree  misrepresented,  supposing  that  said 
crews  were  abandoned  on  a  deserted  coast,  without  resources,  whereas,  as  H.  E.  con* 
fesses,  there  existed  there  an  establishment,  with  thirty  soldiers  naturally  well  supplied, 
for  the  loading  of  guano;  and  that  moreover,  as  can  be  proved  if  necessary,  the  com- 
mander of  the  Tiunbes  left  for  the  same  crew  small  boats  and  abundant  provisions,  with 
the  assistance  of  which  they  started  without  difficulty  for  the  port  of  Arica,  where  they 
arrived  on  the  28th  of  last  month,  and  after  being  assisted  with  the  allowance  of  four 
reales  per  day  to  each  individual,  they  were  sent  by  the  Prefect  of  Moquequa  to  Callao ; 
and  if,  to  aggravate  unmerited  charges,  the  instructions  issued  to  the  commander  of  the 
Tumbes  be  commented  upon,  and  which,  belonging  to  the  private  affairs  of  the  domestic 
administration,  are  not  under  the  control,  inspection,  or  censure  of  a  foreign  power  ;  the 
undersigned,  as  a  full  reply,  assures  H.  E.  the  Envoy  Extraordinary  and  Minister  Pleni- 
potentiary that,  in  the  manner  in  which  the  capture  was  effected,  there  has  been  no 
disregard  to  the  principles  of  humanity,  in  the  exercise  of  which  the  Government  of 
Peru,  and  all  her  people,  stand  on  a  par  with  the  most  civilized  nations,  but  that  it  was 
effected  with  the  precautions  and  measures  which  are  practised  and  customary  among  all 
nations  under  similar  circumstances. 

In  conclusion,  the  undersigned  would  cite  to  H.  E.  Mr.  Clay  the  repeated  decisions  of 
the  Supreme  Court  of  the  United  States,  by  which  foreign  bottoms  might  be  followed 
and  seized,  even  at  sea,  and  carried  to  American  ports  for  proper  trial,  for  offences 
against  the  laws  of  the  State,  committed  within  its  territory  :  decisions  are  recorded  in 
Cranclts  Reports,  vol.  6th,  page  281,  and  which  seal  the  conviction  of  the  justice  with 
which  the  Government  of  Peru  has  proceeded,  in  the  capture  and  trial  of  the  Lizzie 
Thompson  and  Georyiana  ;  as  for  the  rest,  the  degree  of  culpability  of  the  captains,  and 
the  peimlties  which  they  may  have  incurred,  are  matters  of  the  judgment  in  course,  and 
in  which  the  executive  power  cannot  interfere,  but  abide  by  the  result. 

In  virtue  of  the  foregoing  established  propositions,  the  Council  of  Ministers,  in  charge 
of  the  executive  power  of  Peru,  declare:  that  they  do  not  consider  legal,  -well-grounded 
nor  admissible,  the  protest  of  H.  E.  the  Envoy  Extraordinary  and  Minister  Plenipoten- 
tiary of  the  United  States ;  that  they  sustain  the  perfect  right  with  which  the  capture 
and  trial  of  the  aforesaid  vessels  has  been  effected  ;  and  that,  which  is  not  anticipated 
from  the  integrity  and  ability  of  H.  E.  Mr.  Clay,  should  he  insist  on  sustaining  that  pro- 
test, the  Government  of  Peru,  strong  in  the  assurance  of  the  justice  of  her  position,  will 
appeal  directly  to  the  magnanimous  Government  of  the  United  States,  confiding  in  its 
undoubted  justice  and  wisdom  to  obtain  the  recognition  of  that  right,  and  consequent 
reparation  for  said  protest,  without  entertaining  the  slightest  fear  that  their  expectation 
would  be  frustrated. 

'J  he  undersigned  reiterates  to  H.  E.  the  Envoy  Extraordinary  and  Minister  Plenipo- 
tentiary the  sentiments  of  liis  distinguished  consideration. 

MANUEL  ORTIZ  DE  ZEVALLOS. 
To  H.  E,  the  Envoy  Extraordinary  and  Minister  Plenipotentiary  of  the  U.  S. 


51 


(Translated from  the  Spanish.} 

LEGATION  OF  THE  UNITED  STATES,  ) 
LIMA,  March  9th,  1858.          j 

The  undersigned,  Envoy  Extraordinary  and  Minister  Plenipotentiary  of  the  United 
States,  has  had  the  honor  to  receive,  on  the  19th  ultimo,  the  note  which  H.  E.  the 
Minister  of  Foreign  Affairs  of  Peru  addressed  to  him  under  date  of  the  18th  of  that 
month. 

Before  considering  the  arguments  employed  by  H.  E.  to  answer  those  contained  in 
the  note  of  the  undersigned,  of  the  9th  of  February  last,  he  must  be  permitted  to  say, 
that  he  does  not  consider  it  usual  to  refer  to  the  opinions  expressed  in  official  interviews 
had  on  occasions  some  time  passed,  since  such  references  may  lead  to  contradictions, 
either  in  the  language  employed,  or  at  least  in  the  deductions  which  in  justice  are  derived 
from  them.  Nevertheless,  as  H.  E.  has  deemed  it  proper  to  allude  to  the  conversations 
had  on  three  different  occasions,  with  the  apparent  intention  of  discovering;  if  any  change 
had  occurred  in  the  views  of  the  undersigned,  he  will  rectify  the  deductions  which  H.  E. 
has  drawn  from  his  observations  in  the  aforesaid  interviews. 

In  the  first  place,  H.  E.  alludes  to  the  information  from  the  commander  of  the  war 
steamer  Ucayali,  relative  to  the  proceedings  of  the  captain  of  the  John  Adams  at  the 
Chincha  Islands  in  the  month  of  May  last,  who  declared  that  "he  would  protect  every 
"  vessel  which  loaded  guano  for  any  American  citizen,  whatever  its  flag  might  be."  H. 
E.  read  this  information,  and  other  documents,  to  the  undersigned,  at  the  interview  which 
took  place  on  the  9th  or  10th  of  May,  1857,  and  the  undersigned  framed  a  memorandum, 
of  this  conversation,  and  communicated  it  to  his  government  on  the  llth  of  May,  assuring 
it" that  H.  E.  the  Minister  of  Foreign  Affairs  had  informed  the  undersigned  that  the 
"commander  of  the  United  States  man-of-war  John  Adams  landed  at  the  Chincha 
"  Islands,  and  acting  in  conformity  with  Garcia,  agent  of  General  Vivanco,  interrogated 
"the  agent  of  the  house  of  Barreda  &  Brother,  being  at  first  inclined  to  oblige  the 
"  vessels  chartered  by  that  house  to  exchange  their  bills  of  lading  for  those  in  the  name 
"  of  Samuel  F.  Tracy,  agent  of  Vivanco  in  the  United  States;  but  that  afterwards  he 
"  (the  commander  of  the  John  Adams)  concluded  by  saying  that  such  questions  should  be 
"  directed  to  the  diplomatic  agent  of  the  United  States  at  Lima." 

The  undersigned  added,  that  H.  E.  was  not  disposed  to  make  a  formal  complaint 
for  the  conduct  of  the  commander  of  the  John  Adorns,  but  that  said  commander  had 
invaded  the  jurisdiction  which  belong  to  tribunals  of  Peru. 

The  undersigned  remembers  that  H.  E.  said  at  this  time  that  he  did  not  pretend  to 
make  official  complaint,  because  he  desired  to  avoid  disagreeable  questions, 

Notwithstanding,  the  undersigned  does  not  remember  having  solemnly  offered  "  to  ob- 
"  tain  from  his  government  due  reparation  for  the  conduct  of  the  John  Adams"  What 
he  said  to  H.  E.  was,  "  that  if  the  acts  mentioned  by  H.  E.  were  clearly  substantiated, 
"  he  could  not  approve  such  conduct,  nor  would  it  be  done  by  the  Government  of  the 
"  United  States."  The  undersigned  offered  to  inform  his  government  of  the  affair,  and 
did  so ;  but  he  did  not  offer  to  obtain  the  due  satisfaction,  which  H.  E.  did  not  ask  for, 
being  desirous  to  avoid  disagreeable  questions  between  the  two  governments. 

Referring  to  the  opinions  of  the  two  members  of  the  bar  of  Baltimore,  transmitted  by 
the  Diplomatic  Agent  of  Peru  in  the  United  States,  H.  E.  omitted  to  say  that  Mr.  Osma, 
alluding  to  the  lawyers,  said  in  substance  that  it  was  feared,  that  the  opinion  of  a  jury 
would  be  influenced  by  the  arguments  of  counsel,  and  the  prevailing  opinion  in  the 
United  States  that  th«  guano  is  sold  at  excessively  high  prices.  The  undersigned  per- 
fectly well  remembers  that  he  adverted  to  H.  E.  that  the  opinion  of  these  members  of 
the  bar  (one  of  whom  he  understands  Was  Mr.  Reverdy  Johnson)  was.  of  great  weight ; 
and  that  in  regard  to  the  fears  of  Mr.  Osma,  that  a  jury  would  be  biased  by  outside 


52 

influences,  the  undersigned  believed  them  to  be  destitute  of  all  foundation,  because  the 
juries  of  the  United  States  are  composed  generally  of  respectable  men,  conscious  of  the 
sanctity  of  an  oath,  and  incapable  of  allowing  the  force  of  public  opinion,  or  the  argu- 
ments of  counsel  to  influence  their  verdicts.  On  the  other  hand,  the  juries  only  decide 
upon  the  facts  in  litigation,  leaving  the  points  of  law  to  the  decision  of  a  judge  or  judges, 
whose  opinions  cannot  be  influenced.  The  reference  to  Mr.  Caverly  had  for  its  object  to 
disabuse  the  mind  of  H.  E.  of  whatever  doubt  might  remain  respecting  the  juries,  be- 
cause that  gentleman  is  very  well  informed  by  his  connection  with  the  courts  of  the 
United  States. 

Finally,  the  undersigned  remembers  that  at  his  interview  with  H.  E.,  respecting  the 
convention  signed  in  Lima,  on  the  21st  of  May,  1857,  and  published  the  6th  of  June,  he 
asked  to  be  informed  "if  in  case"  American  vessels  went  to  load  guano,  "  at  the  deposits 
"  of  the  republic,  without  a  license  in  due  form,  they  could  be  seized,  or  merely  ordered 
"off  by  the  naval  forces  of  Great  Britain  and  France,  exercising  police  in  the  Chincha 
"  Islands,  or  other  deposits  of  guano,  which  duties  belong  solely  to  the  vessels  of  war  of 
"Peru."  And  the  undersigned  said  to  H.  E.,  "  that  if  the  convention  contained  any  pro- 
"  visions  which  could  affect  in  the  least  degree  the  independence  of  Peru,  or  give  to 
"  Great  Britain  or  France  an  appearance  of  property  in  the  Chincha  Islands,  or  other 
''  islands  of  the  coast,  or  any  right  to  control  the  commerce  in  guano  with  them,  he  should 
"  deem  himself  imperatively  bound  to  protest  against  such  an  arrangement;  or,  in  other 
"words,  that  the  undersigned  could  not  view  with  indifference  the  establishment  of  a 
"  protectorate  by  those  nations  over  these  islands,  or  any  other  part  of  the  territory  of 
''Peru." 

H.  E.  the  Minister  of  Foreign  Affairs  cannot  have  forgotten  that  the  undersigned  declined 
taking  any  part  in  the  arrangement  of  this  convention,  "  because  he  did  not  think  the 
"  United  States  so  immediately  interested  in  its  object,  and  he  considered  it  as  an  usurp- 
"  ation  of  the  independence  of  the  Peruvian  nation,  and  of  direct  intervention  in  the 
"  domestic  affairs  of  the  country;  that  he  viewed  it  as  a  dangerous  precedent,  capable 
"  of  producing  political  complications,  whose  results  it  was  impossible  to  calculate." 

All  these  reflections  of  the  undersigned  were  based  on  the  supposition  that  the  Gov- 
ernment of  Lima  would  recover  and  take  possession  of  the  Chincba  Islands,  resuming 
jurisdiction  over  them.  The  undersigned  did  not  express  at  that  time  any  opinion  in 
regard  to  the  vessels  which  loaded  at  the  Islands  under  license  from  the  party  of  Vivanco  ; 
he  constantly  declined  so  to  do,  although  he  was  frequently  solicited  to  that  effect,  and 
he  would  certainly  not  have  touched  this  matter,  if  it  had  not  become  necessary  in  the 
discussion  of  the  capture  of  the  Lizzie  Thompson  and  the  Georgiana,  by  the  Tumbes. 
The  undersigned  was  not  under  the  necessity  of  giving  an  opinion,  and  confesses  that 
this  is  simply  spontaneous.  It  should  be  noted  that  neither  the  Diplomatic  Agents  nor 
the  commanders  of  vessels  of  war  of  Great  Britain  and  France  ventured  to  interfere 
with  the  vessels  which  loaded  guano  at  the  Chincha  Islands,  under  licenses  issued  by  the 
party  of  Vivanco,  notwithstanding  the  very  extraordinary  stipulation  of  the  7th  article 
of  the  convention,  which  was  to  begin  .and  take  effect  provisionally,  and  ad  referendum 
from  its  dale. 

The  undersigned  has  gone  into  these  explanations  out  of  respect  to  H.  E.,  and  to  show 
that  there  is  nothing  in  his  note  which  could  have  excited  the  surprise  of  the  Exmo 
Council  of  Ministers,  in  charge  of  the  executive  power  of  Peru;  much  less,  should  it 
be  a  cause  of  such  surprise  that  the  undersigned  defends  the  rights  and  interests  of  his 
fellow-citizens,  which  he  considers  invaded. 

The  undersigned  founded  his  protest  on  two  bases: 

1st.  That  the  Peruvian  nation  is  divided  into  two  hostile  parties,  one  of  which  sup 
ports  the  present  administration,  or  executive  power;  and  the  other,  a  revolutionary 
party,  whose  object  is  to  carry  into  effect  a  change  in  the  presidency. 


53 


2  A  That  the  question  between  the  two  parties  has  its  origin  in  local  interests ;  that 
they  have  in  view  equal  objects,  and  are  limited  to  the  territory  of  Peru :  consequently 
it  is  a  domestic  and  internal  struggle,  in  which  foreign  nations  hare  no  right  to  interfere 
nor  to  decide  in  favor  of  either  of  the  two  parties. 

With  these  principles  in  view  the  undersigned  resumes  the  discussion  respecting  tike 
capture  of  the  Lizzie  Thompson  and  the  Georgiana,  and  will  aim  to  answer  satisfactorily 
the  points  of  the  note  of  H.  E.  The  undersigned  will  limit  himself  to  the  question  of 
the  legality  of  the  capture,  and  will  give  no  opinion  upon  the  validity  of  the  contracts 
for  the  sale  of  guano,  made  by  the  revolutionary  party,  since  this  question  most  be  de- 
cided  by  the  courts  or  tribunals  in  places  where  this  article  has  been  sent. 

H.  E.  the  Minister  of  Foreign  Affairs,  in  replying  to  the  undersigned  refers  to  the  laws 
and  commercial  regulations  of  Peru,  which  regulate  the  clearance  of  vessels,  the  expor- 
tation of  guano,  and  the  commerce  of  the  coast ;  and  argues  that,  as  these  laws  expressly 
prohibit  the  approach  of  foreign  vessels  to  the  national  deposits,  that  the  loading  and 
sale  of  guano  are  reserved  to  special  agents,  and  the  exportation  limited  to  the  <Ti'irf1>« 
Islands  with  license  from  the  government,  the  fact  that  the  Lizzie  Thompson  and  the 
Gtorgiana  were  seized  by  the  Tumle*  at  Punta  de  Lobos  and  Pabellon  de  Pica  is  more 
than  sufficient,  without  other  proofs,  to  demonstrate  that  the  said  Teasels  were  occupied 
-candalous  and  criminal  contraband  commerce. 

The  undersigned  admits,  without  hesitation,  the  existence  of  these  laws  in  their  force 
and  application  in  all  the  territory  of  Peru,  in  time  of  peace,  and  when  all  the  P« 
people  recognize  the  same  administration  of  government  in  the  country.  In 
peaceful  state  of  things  in  Peru,  the  negation  or  doubt  on  the  part  of  other  nations  as  to 
the  authority  which  the  executive  has  to  enforce  compliance  with  said  laws,  would  be 
equivalent  to  a  denial  of  the  sovereignty  and  independence  of  the  Penman  nation. 

But  the  case  is  very  distinct,  when  the  state  is  in  the  midst  of  civil  war,  and  divided 
into  two  parties,  each  one  of  which  proclaims  that  it  represents  the  desires  and  wishes 
of  the  Peruvian  people,  the  origin  and  source  of  all  legislation  and  of  all  laws  in  the 
territory  of  Peru.  And  such  is  the  true  condition  of  the  republic  at  present,  notwith- 
standing that  H.  R  regards  the  revolution  as  "a  party  which  has  taken  refuge  in  the 
"  city  of  Arequipa,"  and  General  Rivas,  the  armed  agent  of  this  party,  as  the  chief  of  a 
revolted  vessel,  it  is  not  less  true  that  there  are  two  belligerents  in  Peru,  and  that  the 
party  of  Vivanco  has  been  recognized  as  such  by  the  Government  of  Lima  and  by  the 
-- :ve  commandersMn-chief  of  the  forces  of  the  government  before  Arequipa, 

The  National  Convention  of  Peru,  in  the  month  of  October  last,  authorized  the  Exmo 

Council  of  Ministers  to  appoint  commissioners  to  negotiate  with  general  Tivanco  for  the 

pacification  of  the  country ;  and  the  undersigned  is  informed  that  said  commissioners 

were  not  sent,  because  the  persons  appointed  declined  accepting  the  charge ;  and  finally, 

because  the  said  National  Convention  was  dissolved  by  force  of  arms.    Notwithstanding 

this,  commissioners  were  appointed  by  Marshal  San  Roman,  on  the  part  of  the  govern- 

ieral  Vivanco,  on  the  part  of  the  revolution,  with  the  same  object;  and 

<y  the  government  and  the  Provisional  President,  commander-in-chief  of  the  army, 

J  the  offer  of  the  Chilean  Minister.  Mr.  Irarraxabal,  to  mediate  between  the  con* 

tendin_  id  he  was  conducted  to  Islay  on  board  the  French  war  steamer  Larvi- 

the  reqv.est  of  H.  E.  the  Minister  of  Foreign  Affairs. 

Therefore  it  is  evident  that,  by  these  and  other  acts,  the  Government  of  Lima  and  the 

!  ent.  as  commander-in-chief  of  the  army,  have  recognized  the  leader  of  the 

revolution  and  his  adepts,  as  a  revolutionary  party,  who,  as  such,  enjoy  all  the  rights  of 

war  in  the  territory  and  jurisdiction  of  Peru,  both  in  relation  to  natives,  and  in  respect 

to  foreign  nations. 

The  undersigned  might  go  farther,  were  he  not  restrained  by  motives  of  delicacy,  and 
allude  to  the  circumstance  that  the  government  in  Lima,  as  well  as  the  opposition  in 


54: 


Arequipa,  are  considered  with  the  character  of  provisional  governments,  until  the  people 
are  convoked  for  the  election  of  a  president ;  which  is  equivalent  to  saying  that  the 
people,  the  source  of  all  power  in  the  republic,  have  not,  by  their  sovereign  will,  as  yet 
decided  between  the  parties. 

Such  being  the  state  of  affairs,  neither  foreign  nations  nor  their  citizens  or  subjects 
have  the  right  to  decide  this  question ;  and  in  their  relations  with  Peru,  it  only  belongs 
to  them  to  accept  the  condition  of  things  as  they  have  found  them.  They  cannot  dispute 
the  jurisdiction  nor  question  the  authority  of  the  local  employees,  because  to  deny  them 
would  be  an  actual  invasion  of  the  independence  of  the  Peruvian  nation. 

We  will  again  speak  of  the  validity  or  morality  of  the  contracts  made  by  the  opposi- 
tion for  the  sale  of  guano ;  and  the  undersigned  has  already  observed  that  he  does  not 
give  an  opinion,  but  he  repeats  that  the  leaders  of  the  revolutions  which  succeed  one 
another  in  Peru,  have  always  disposed  of  the  property  of  the  nation  to  procure  money 
and  arms  to  sustain  their  cause,  under  the  pretence  of  representing  the  national  will; 
and  in  the  moral  point  of  view,  this  is  not  the  worst  course  which  they  have  taken,  among 
the  other  expedients  they  have  made  use  of.  As  a  question  of  morality,  the  difference 
is  very  trifling  between  the  issuing  of  bonds,  for  whose  payment  the  revolutionary  leaders 
pledge  the  national  property  and  revenues,  for  the  purpose  of  procuring  funds,  and  the 
exportation  and  sale  of  guano  from  the  deposits,  because  this  article  is  the  principal  source 
of  the  revenues  of  the  country,  with  which  those  bonds  are  to  be  redeemed. 

The  undersigned  has  insisted  in  these  observations,  because  H.  E.  accused  the  captains 
of  the  before  mentioned  vessels  of  having  committed  a  scandalous  robbery  of  guano. 

The  revolutionary  party  considered  as  a  belligerent  is  authorized  by  the  laws  of  war 
to  occupy  the  provinces  and  towns  of  the  republic,  take  possession  of  the  property  of 
the  state,  make  use  of  the  public  revenues,  change  the  local  authorities,  and  exercise 
other  rights  inherent  to  jurisdiction  ;  from  which  it  consequently  follows  that  in  occupy- 
ing the  province  of  Iquique,  the  official  who  commanded  the  forces  of  the  revolution  was 
authorized  by  his  chief  to  do  all  he  possibly  could  to  advance  his  cause ;  and  by  the  laws 
of  war  he  was  justified  in  denying  the  jurisdiction  of  the  Government  of  Lima,  changing 
the  collector  and  other  authorities  of  the  port,  and  suspending  all  the  decrees  which 
affect  the  property  and  public  revenues  in  that  province,  particularly  those  of  a  simply 
administrative  character. 

And  notwithstanding  the  suspension  of  the  regulations  relative  to  the  exportation  of 
guano,  and  of  the  formalities  to  be  observed  by  the  vessels  which  go  to  the  deposits  to 
load  guano  ;  and  notwithstanding  that  those  relating  to  coastwise  commerce  were  not 
affected  by  any  special  decree,  the  licenses  issued  by  the  authorities  who  were  at  the  port 
of  Iquique  to  the  Georgiana  and  Lizzie  Thompson,  for  going  to  Pabellon  de  Pica  and 
Punta  de  Lobos,  destroyed  for  them  the  obstacles  interposed  by  said  laws  and  regula- 
tions respecting  the  coastwise  commerce,  and  the  approach  of  foreign  vessels  to  the  de* 
posits  and  places  of  the  province. 

On  the  other  hand,  it  is  not  to  be  denied  that  vessels  which  enter  foreign  ports  are 
obliged  to  recognize  the  authorities  which  they  find,  without  prying  into  their  origin, 
The  employees  of  the  port  are  the  source  to  which  the  captains  must  go  to  enter,  or  sail, 
and  inform  themselves  of  the  laws  and  mercantile  regulations.  Obedience  to  them  is  one 
of  the  principal  conditions  required  for  the  right  of  commerce  with  a  country,  and -what- 
ever the  laws  and  local  regulations  of  Peru  may  be  in  the  case  of  the  entry  of  foreign 
vessels,  these  authorities  must  be  considered  as  the  legitimate  interpreters  of  those  reg- 
ulations, they  being  alone  responsible  in  case  the  vessels  are  misdirected. 

The  captains  found  General  Rivas,  a  Custom-House  and  fiscal  employee,  in  Iquique  ; 
for  them  it  was  sufficient  that  these  persons  were  in  possession  of  the  place,  exercising 
jurisdiction,  and  if  the  authority  exercised  by  General  Rivas  and  the  other  employees, 
and  the  licenses  issued,  were  illegal,  summon  them  in  good  time  to  respond  before  the 
tribunals  of  the  nation  for  having  assumed  these  functions  ;  but  it  did  not  beling  to  for- 


eigners  to  investigate  such  questions  nor  dispute  the  jurisdiction  of  the  authorities  they 
might  find  in  the  ports  of  Peru. 

It  should  also  be  taken  into  consideration  that  these  American  vessels  did  not  go  to  the 
deposits  of  Pabellon  de  Pica  and  Punta  de  Lobos  to  load  guano  for  account  of  their 
owners;  they  went  therein  virtue  of  charters  made  by  persons  who  held  contracts  for 
the  exportation  of  the  guano,  and  acted  as  simple  carriers  without  interest  in  the  cargoes, 
but  simply  in  the  freight.  Moreover,  the  guano  was  taken  on  the  beach  and  put  on 
board  by  those  who  occupied  the  deposits. 

The  vessels  were  innocent  carriers  without  property  in  the  guano  on  board,  and  with- 
out any  expectation  of  the  profit  which  might  be  derived  from  its  sale.  As  simple  car- 
riers they  were  not  obliged  to  learn  the  nature  of  the  contracts  made  by  their  charterers; 
and  if  these  contracts  were  fraudulent  or  illegal,  the  government  should  have  proceeded 
against  their  authors,  and  not  against  the  vessels. 

For  these  reasons,  and  others  which  might  be  adduced,  the  undersigned  believes  that 
the  aforesaid  vessels  have  not  committed  any  infraction  of  the  laws  and  mercantile  regu- 
lations of  Peru  in  the  province  of  Iquique,  and  that  consequently  their  capture  was  not 
of  perfect  right. 

As  H.  E.  the  Minister  of  Foreign  Affairs  has  deemed  it  proper  to  comment  upon,  and 
gives  so  much  importance  to,  the  words  regularly  established,  employed  by  the  undersigned 
in  speaking  of  the  Custom-House  of  Iquique,  the  undersigned  would  remark  that  in 
using  this  term,  he  did  not  refer  to  the  source  from  whence  those  authorities  received 
their  commissions.  The  words  established  in  due  form,  means  that  they  established  a 
Custom-House  at  the  port,  with  employees,  and  nothing  more.  If  the  interpreter  of  the 
Minister  of  Foreign  Affairs  has  transposed  the  words,  saying  "  established  regularly,"  he 
has  perverted  the  idea  of  the  phrase. 

The  undersigned  cannot  agree  with  H.  E.  that  the  Custom-House  of  Iquique  was  "  a 
"  positive  farce  "  performed  by  the  military  chief  of  a  revolted  vessel,  who  has  no  other 
support  than  that  which  he  has  under  the  fire  of  his  cannons.  The  undersigned  under- 
stands that  General  Rivas  held  the  commission  from  the  revolutionary  party,  as  com- 
mander-in-chief  of  the  navy;  that  the  steamship  Apurimac  concentrated  in  herself  the 
principal  force  of  the  Peruvian  fleet ;  that  she  had  been  sent  to  cruise  on  the  coast  of 
Peru,  which  adhered  to  the  revolution,  and  that  finally  the  attitude  taken  by  that  ship 
was  one  of  the  principal  causes  which  led  to  the  signing  of  the  convention  of  May  24th, 
1857.  Such  acts  appear  to  be  entirely  the  reverse  of  a  farce. 

The  obligation  on  the  part  of  foreign  residents  in  the  country,  and  of  the  foreign  ves- 
sels which  arrive  at  the  ports  of  Peru,  to  recognize  the  local  authorities  and  their  orders, 
has  become  more  evident  from  the  facts — the  Government  has  not  proceeded  to  again 
collect  from  the  merchants  the  amount  of  the  duties  paid  by  them  to  the  authorities  of 
the  party,  and  the  goods  entered  by  the  Custom-Hoiise  have  remained  in  their  power. 
Nor  have  they  proceeded  against  the  vessels  which  have  arrived  at  Callao  from  Iquique 
for  the  port  and  tonnage  dues  which  they  had  paid  to  the  revolutionary  authorities  of 
the  last-named  port. 

If  these  acts  had  not  been  considered  binding,  the  merchants  and  the  vessels  would 
have  paid  double  duties. 

Another  proof  that  the  responsibility  of  official  acts  always  belongs  to  the  authorities 
which  execute  them,  may  be  found  in  the  fact  that  the  Peruvian  nation  has  always  re- 
paid the  forced  loans  and  tho  contributions  imposed  during  a  period  of  revolution  on  the 
foreigners  resident  in  the  republic. 

For  these  and  other  reasons  which  may  be  adduced,  the  undersigned  considers  the 
capture  of  the  Lizzie  Thompson  and  Georgiana  as  illegal. 

Having  demonstrated  that  the  revolutionary  party,  in  the  exercise  of  the  right  of  a 
belligerent,  suspended,  in  the  case  of  the  American  vessels,  the  prohibition  to  load  and 
export  guano  from  Pabellon  de  Pica  and  Punta  de  Lobos,  the  undersigned  will  endeavor 


56 


to  prove  that  the  mode  of  procedure  against  the  vessels  was  irregular,  and  the  detention 
of  their  captains  and  mates  illegal. 

Supposing  that  the  vessels  were  liable  to  capture,  their  cases  should  have  been  sub- 
mitted to  the  collector  of  the  Custom-House  of  the  province  where  they  committed  the 
wrong.  Article  26  of  the  Regulations  of  Commerce  provides :  "  That  the  collectors  of 
"  the  principal  Custom-Houses  in  the  territory  which  they  comprise,  are  the  judges  in  the 
"  cases  and  for  the  causes  specified  in  this  regulation."  Consequently,  the  collector  of 
the  Custom-House  of  Callao  could  not  in  any  case  have  jurisdiction  in  the  causes  of  the 
Lizzie  Thompson  and  Georgiana.  Such  has  been  the  practice  in  the  few  cases  of  seizure 
of  foreign  vessels  which  have  been  submitted  to  the  tribunals  of  the  country.  Such  was 
the  course  with  the  English  brig  Hibernia,  which  was  seized  for  being  at  the  Lobos 
Islands  in  the  year  1845,  which  was  tried  in  the  first  instance  by  the  collector  of  the 
Custom-House  of  San  Jose  de  Lambayeque,  afterwards,  on  appeal,  by  the  Court  of 
Truxillo,  and  finally  the  Supreme  Court  of  Lima.  By  the  law  15,  title  1st,  part  7th,  of 
the  Spanish  laws,  also  in  force  in  Peru,  a  criminal  cause  must  be  submitted  to  the  Judge 
of  the  place  where  the  offence  was  committed.  Consequently,  in  conformity  with  the 
article  of  the  Regulations  of  Commerce,  and  the  law  cited,  the  proceedings  against  the  two 
vessels  and  their  captains  by  the  collector  of  the  Custom-House  of  Callao,  are  null. 

Further,  the  imprisonment  of  the  captains  of  the  Lizzie  Thompson  and  Georgiana,  in 
Casas-matas,  after  the  arrival  at  Callao,  and  all  the  proceedings  had  against  them,  are 
null  and  offensive  for  other  reasons.  By  article  30th  of  the  Treaty  of  the  26th  of  July, 
1851,  it  is  stipulated  that  the  citizens  of  either  republic  accused  of  any  offence,  "shall 
"  in  every  case  be  brought  for  examination  before  a  magistrate  or  other  legal  authority, 
"  twenty-four  hours  after  their  arrest,  and  in  case  the  accused  be  not  so  examined,  he 
shall  forthwith  be  free  from  custody." 

The  captains  referred  to  were  taken  from  their  vessels,  and  carried  as  prisoners  on 
board  the  Tumbes,  which  went,  on  the  24th  of  January  last,  with  the  intention  and  for 
purpose  of  making  an  arrest;  brought  in  the  steamer,  and  lodged  in  Casa-matas;  the 
collector  did  not  take  their  depositions,  neither  did  he  examine  them  until  the  20th  of 
January,  that  is  to  say,  five  days  after  their  arrest,  when,  according  to  the  terms  of  the 
treaty,  neither  the  judge  of  contraband  and  confiscations,  nor  any  other  magistrate,  have 
the  least  right  to  proceed  against  them,  because  their  declarations  were  not  taken  during 
the  twenty-four  hours  following  their  arrest. 

If  the  commander  of  the  Tumbes  had  permitted  the  captains  to  remain  on  board  their 
vessels,  and  had  ordered  them  to  come  to  Callao  for  their  trial,  the  procedure  against 
Captains  Wilson  and  Reynolds,  and  the  taking  of  their  declarations,  would  have  been  in  a 
measure  justified  ;  but  this  course  not  having  been  pursued,  the  accused  should  have 
been  put  at  liberty  immediately  after  their  arrival  at  Callao. 

The  undersigned,  during  the  entire  of  the  present  correspondence,  has  aimed  to  avoid, 
so  far  as  possible,  all  allusions  to  the  origin  and  progress  of  the  revolutions  which  have 
taken  place  in  Peru.  There  are  certain  observations,  however,  in  the  note  of  H.  E 
which  make  it  necessary  to  refer  to  them. 

H.  E.  in  replying  to  the  observations  made  by  the  undersigned,  in  regard  to  the  Cus- 
tom-House of  Iquique,  objects  that  they  were  "  authorities  de  facto"  in  the  following 
terms'.  "And  the  expression  of  this  idea  is  as  much  more  grave  and  transcendental,  as  is 
"  founded  on  the  possibility  of  the  existence  of  subaltern  authorities  de  facto,  of  which 
"the  best  writers  have  not  treated  up  to  the  present  time,  limiting  the  qualification  only 
"to  the  government  de  facto." 

The  word  "  authorities  de  facto  "  were  employed  by  the  undersigned  as  synonymous 
•with  "  existing,"  without  any  reference  to  the  cause  of  this  existence,  or  the  source  whence 
these  authorities  derived  their  powers  of  action.  Jf  the  term  has  been  applied  to  the 
government,  or  to  the  subaltern  authorities,  it  would  naturally  lead  to  some  inve.§tiga.- 


tion  touching  the  origin  or  legitimacy  of  such  government ;  and  the  use  of  the  term  im- 
plies the  idea  that  such  an  investigation  was  not  intended  or  admitted. 

When  the  authorities  of  greatest  note  wrote  their  treatises  on  the  law  of  nations,  the 
countries  which  have  since  been  the  theatre  of  almost  periodical  revolutions,  and  the  fre- 
quent examples  of  interior  strifes,  were  colonies,  and  their  effect  upon  the  affairs  of  the 
other  nations  had  not  occurred.  Very  little  has  been  said  by  these  authorities  respect- 
ively, even  in  regard  "to  the  governments  de  facto ;  but  if  they  had  written  at  the 
present  time,  they  would,  without  doubt,  have  extended  their  observations  to  the  acts  of 
the  authorities  de  facto. 

The  undersigned  asserted,  in  his  note  of  the  9th  of  February,  that  the  crews  of  the 
Lizzie  Thompson  and  Gcoryiana  were  taken  by  force  from  their  vessels,  embarked  in 
their  boats,  and  abandoned  on  a  sterile  and  inhospitable  coast,  without  provisions  or 
water,  and  he  further  said,  that  such  a  mode  of  executing  the  capture  was  unjustifiable, 
cruftl,  and  illegal. 

H.  E.,  in  commenting  on  the  expression,  remarks  that  such  terms  should  not  be  "  ven- 
tured without  positive  proofs,"  and  gives  the  assurance  that  the  fact  of  having  left  the 
crew  on  shore,  who  could  not  be  convoyed  or  guarded  by  the  Tumbes  without  grave  risk 
is  exaggerated,  and  to  a  certain  degree  very  different  .from  the  abandonment  of  said 
crew  on  the  desert  coast.  H.  E.  adds,  that  in  case  of  necessity  he  can  prove  that  the 
commander  of  the  Tumbes  left  the  crew  in  small  boats  with  abundant  provisions. 

The  undersigned  does  not  intend  to  enter  into  a  new  discussion  upon  this  point,  but  he 
will  state  to  H.  E.  that  whenever  he  refers  to  facts,  his  assertions  can  be  sustained  by 
documents.  In  confirmation  of  which,  he  has  the  honor  to  accompany  certified  extracts 
of  the  reports  of  the  Consul  of  the  United  States  at  Arica,  dated  5th  ultimo,  and  the 
declarations  of  the  second  mate  and  fifteen  men  of  the  crew  of  the  Lizzie  Thompson 
taken  before  the  United  States  Consul  at  Callao,  which  affirm  under  oath  that  they  were 
abandoned  by  the  Tumbes  in  their  dismasted  boats,  at  Pabellon  de  Pica,  without  pro- 
visions or  water. 

This  evidence  in  connection  with  the  assertions  contained  in  the  declarations  of  the 
captains  of  the  vessels  before  the  Consul  of  the  United  States  at  Callao,  are  more  than 
sufficient  to  rebut  and  destroy  any  asseveration  to  the  contrary  by  the  commander  of  the 
Tumbes. 

The  undersigned,  after  a  careful  review  of  all  the  circumstances  connected  with  the 
causes  which  are  under  consideration,  has  been  unable  to  discover  any  sufficient  reason 
for  retiring  the  protest  contained  in  his  note  of  the  9th  ultimo.  Said  protest  has  not  been 
made  with  hostile  intent,  but  simply  in  behalf  of  the  owners  and  others  connected  with 
and  interested  in  the  said  vessels.  And  although  the  undersigned  sincerely  regrets  not 
having  been  so  fortunate  as  to  arrive  at  a  settlement  at  the  outset  with  H.  E.  the  Minis- 
ter of  Foreign  Affairs,  the  undersigned  does  not  doubt  that  his  views  will  be  sustained,  al- 
though the  Government  of  the  United  States  may  attend  to  the  direct  appeal  which 
Peru  proposes  to  make,  as  stated  in  the  note  of  H.  E.  of  the  18th  ultimo. 

The  undersigned  has  the  honor,  on  this  occasion,  to  renew  to  H.  E.  the  Minister  of 
Foreign  Affairs  the  assurance  of  his  highest  consideration. 

(Signed) 

J.  RANDOLPH  CLAY. 


58 


Mr.  OSMA  to  Mr.  CABS. 

(Translated  in  the  Department  of  State.) 

LEGATION  OF  PERU  ix  THE  UNITED  STATES,  ) 
Washington,  March  27,  1858.  f 

The  undersigned,  Minister  Resident  of  Pern,  in  pursuance  of  instructions  received 
from  his  government,  has  the  honor  of  begging  the  Secretary  of  State  of  the  United 
States  to  be  pleased  to  direct  his  attention  to  the  claims  addressed  to  the  Peruvian 
Government  by  the  Minister  of  the  United  States  at  Lima,  as  they  appear  in  the  notes 
of  the  4th  and  9th  of  February  ultimo,  which  he  deemed  it  proper  to  transmit  to  His 
Excellency,  the  Minister  of  Foreign  Relations  of  Peru,  and  which  are  now  within  the 
reach  of  the  Secretary  of  State. 

The  Minister  of  Foreign  Relations  of  Peru  has  minutely  and  satisfactorily  answered 
all  that  was  alleged  in  the  notes  referred  to,  accompanying  such  answer  with  the  proofs 
and  documents  upon  which  the  government  of  Peru  relies  to  deny  in  toto  the  justice, 
and  even  the  plausibility  of  the  claims  to  which  reference  is  made. 

The  undersigned  would  deeply  regret  that  the  documents  and  declarations  alluded 
to  should  not  have  been  communicated  to  the  Cabinet  of  Washington  ;  for  through  them 
only  can  an  equitable  settlement  be  made  of  the  serious  questions  which  have  been 
started  in  that  correspondence. 

In  instructing  the  undersigned  to  enter  into  direct  communication  with  the  Govern, 
ment  of  the  United  Slates,  the  Government  of  Peru  was  moved  by  the  desire  that  no 
effort  should  be  wanting  on  its  part  to  satisfy  the  former  of  the  sincerity  and  good  faith, 
with  which  the  latter  has  in  this  case  striven,  as  it  will  ever  strive,  to  cultivate  and 
deserve  its  friendship.  It  also  had  for  its  object  to  show  in  this  form  the  deep  reliance 
which  it  has  ever  placed  in  the  moderation  and  the  equity  of  the  Government  of  the 
United  States,  preferring  to  recur  to  them  rather  than  continue,  with  its  Minister  at 
Lima,  a  discussion,  in  the  course  of  which  the  Government  of  Peru  regrets  to  have  dis- 
covered in  his  proceedings  a  want  of  that  impartiality  and  friendly  disposition  so  neces- 
sary to  maintain,  in  all  cases,  relations  of  good  understanding  between  governments. 

In  his  communication,  dated  on  the  4th  of  February  last,  the  Minister  of  the  United 
States  in  Peru  calls  the  attention  of  that  government  to  the  case  of  the  American  barque 
Dorcas  C.  Yeaton,  and  of  her  captain,  Samuel  Potte,  alleging  the  following  in  said 
case  : — 

That  on  the  23d  of  January,  1858,  in  latitude  22°  13',  longitude  71°  31',  on  the  high  seas, 
at  seven  o'clock  A.  M.,  said  barque  was  detained  by  the  Peruvian  armed  steamer  Tumbes, 
with  hostile  demonstrations;  that  the  barque  having  heaved  to,  Lieutenant  Duenas,  the 
commander  of  the  steamer,  ordered  her  to  be  boarded,  despatching  for  that  purpose 
one  of  his  boats  under  the  order  of  an  officer;  that  said  officer  boarded  her,  in  fulfilment 
of  his  orders,  and  asked,  in  the  language  of  authority,  to  be  informed  of  the  route  which 
she  was  pursuing,  as  well  as  for  the  delivery  of  her  papers ;  that  Captain  Potte  obeyed 
under  protest,  and  that  the  Peruvian  officer  went  back  to  the  steamer  with  the  papers; 
that  he  soon  returned,  ordering  the  captain  to  accompany  him  on  board  of  the  Tinnlca ; 
that  Captain  Potte  refused,  and  insisted  that  the  flag  and  character  of  the  vessel  should 
be  respected,  but  that,  the  officer  repelling  all  excuse,  the  captain  was  compelled  to 
obey,  although  protesting  that  he  would  make  Commander  Duenas  and  his  government 
responsible  for  the  outrages  which  were  committed  against  him  ;  that  on  his  reaching 
the  steamer,  he  again  protested  before  her  captain  against  the  unlawfulness  of  such  acts, 
tut  that  his  representations  were  disregarded;  that  the  captain  of  the  Tumbes  eventually 


resolved  that  the  barque  should  not  continue  her  course,  but,  on  the  contrary,  to  send 
her  under  duress  to  Callao  ;  that  lie  abstained  from  taking  forcible  possession  of  her  out 
of  respect  for  the  wife  and  family  of  the  captain  who  were  on  board,  but  exacted  his 
word  of  honor,  that  he  would  immediately  and  directly  proceed  to  Callao ;  that,  accord- 
ingly, the  Dorcas  C.  Yeaton  proceeded  for  that  port,  with  a  prize  officer  on  board  de- 
tached from  the  Tumbes  for  that  purpose. 

The  Minister  of  the  United  States  alleges  that  the  barque,  upon  her  arrival  at  Callao, 
was  boarded  by  an  officer  of  the  captaincy  of  the  port,  who  took  possession  of  her 
papers,  and  ordered  Captain  Potte  to  accompany  him  ashore,  treating  him  in  an  arbitrary, 
rude,  and  threatening  manner;  that  the  captain  had  no  choice  but  that  of  obedience,  and 
that  he  was  then  taken  to  the  office  of  the  port  captain,  and  thence  to  the  residence  of 
the  govrernor,  where  he  was  examined  and  asked  whether  he  wanted  a  cargo  of  guano 
for  the  United  States,  in  which  case  he  was  told  that  one  would  be  given  to  him  when 
he  was  set  at  liberty.  The  Minister  adds,  that  the  conduct  of  Commander  Duefias 
had  been  approved  by  the  Council  of  Ministers  of  Peru,  and  sustained  by  the  Minister  of 
Foreign  Relations  in  an  interview  which  he  had  with  His  Excellency.  Reassuming  these 
facts,  after  alluding  to  them  in  detail,  the  Envoy  Extraordinary  and  Minister  Plenipoten- 
tiary of  the  United  States  concluded  by  denouncing  them  as  a  serious  insult  to  the  flag, 
the  rights,  and  the  dignity  of  the  United  States,  and  in  consequence  thereof,  peremptorily 
demands — 

First. — 'That  the  Government  of  Peru  shall  [give  such  satisfaction,  as  the  Government 
of  the  United  States  may  prescribe. 

Secondly.^-Th&t  Lieutenant  Don  Ygnacio  Duefias  be  suspended  from  his  command, 
and  continue  out  of  the  service  of  the  republic  for  such  time  as  the  government  of 
the  United  States  may  define;  and, 

Thirdly. ->-That  ample  indemnification  be  made  to  the  owners  of  the  Dorcas  C.  Yeatont 
for  all  damages  that  may  result  from  the  facts  mentioned. 

Before  reaching  conclusions  so  serious  as  these,  which  might  involve  still  more  serious 
consequences,  and  demanding  a  satisfaction  which  is,  in  terms,  most  offensive  to  Peru, 
because  they  imply  nothing  less  than  the  annulment  of  her  laws  and  tribunals,  the  Min- 
ister of  the  United  States  in  Lima,  it  was  to  be  hoped,  might  have  dwelt  with  some 
measure  of  soberness  and  attention  in  his  investigation  on  the  grounds  of  claims  that  are 
so  serious,  peremptory,  and  extraordinary.  The  Government  of  Peru  has  certainly,  up  to 
this  time,  evinced  no  disposition  in  the  least  to  violate  the  rights  or  to  insult  the  dignity 
of  the  United  States ;  and,  although  such  a  disposition  may  be  unjustly,  gratuitously, 
and  groundlessly  imputed  to  her,  the  relative  circumstances  and  forces  of  the  two 
nations,  no  less  than  the  fact  that  the  interests  of  Pern  depend  on  the  continuance  of  her 
pacific  relations  with  all  nations,  and  especially  with  the  people  of  the  United  States, 
would  seem  to  tell  sufficiently  upon  any  dispassionate  mind  to  render  impossible  the 
very  idea  that  the  Government  of  Peru  should  attempt  or  pretend  to  dishonor  the  flag  of 
that  republic.  No  doubt  it  is  quite  possible  that,  in  Peru,  as  in  any  other  country,  an 
officer  in  her  service  may  commit,  through  want  of  reflection  or  due  prudence,  some  act 
which  would  require  satisfaction  ;  but  it  seems  impossible  that  his  government,  proceed- 
ing in  a  dispassionate  manner,  and  with  a  knowledge  of  the  facts,  should,  without  reason, 
assume  upon  itself  the  very  serious  responsibility  of  adopting  and  approving  such  a  con- 
duct. The  very  fact  of  the  government's  publicly  approving  the  conduct  of  Commander 
Duefias,  it  seems  to  the  undersigned,  ought  to  have  started  some  doubt  in  the  mind  of 
the  enlightened  Minister  of  the  United  States  at  Lima  as  to  the  accuracy  of  the  facts  on 
which  he  has  insisted  with  so  much  energy. 

The  experience  which  His  Excellency,  through  a  long  residence  in  Peru,  has  gathered 
as  to  the  character  of  its  government,  the  deep  and  habitual  respect  with  which  it  has 


60 


ever  received  and  entertained  his  communications,  the  personal  consideration  which  it 
has  ever  lavished  upon  him,  and  the  important  concessions  which  have  constantly  been 
made  to  him,  only  out  of  respect  for  him  and  for  the  nation  which  he  represents ;  all 
these,  it  seems,  ought  to  have  checked  the  severe  and  hasty  judgment  which  he  has  been 
pleased  to  pass  upon  this  matter.  At  the  time  of  writing  his  communication,  His  Excel- 
lency had  under  his  eyes  Commander  Dueiias'  official  report,  published  on  the  30th  of 
January,  in  the  Peruvian,  the  government's  official  paper,  which  positively  states  that  the 
change  in  the  vessel's  course  was  made  in  consequence  of  an  "  agreement "  with  the 
captain ;  and  whilst  His  Excellency  is  pleased  to  assume,  as  truthful,  one  sentence  of  the 
report  which  will  be  hereafter  alluded  to,  and  which  he  considers  accusatory  of  the 
commander  of  the  Tumbes  and  of  his  government,  he  chooses  to  argue  of  falsehood  the  rest 
of  the  document  which  testifies  the  good  faith  and  legality  of  the  conduct  of  that  officer. 

In  order  to  set  up  and  sustain  the  serious  claims  referred  to,  the  Minister  of  the  United 
States  relies  exclusively  on  the  protest  made  for  the  purpose  on  the  23d  of  January, 
1858,  by  Captain  Potte,  his  pilot,  and  two  of  his  sailors.  The  Minister  of  Foreign  Relations 
of  Peru,  in  his  note  of  the  9th  of  February,  communicated  to  the  Minister  of  the  United 
States  in  Lima  the  minutes  of  the  declarations  of  Captain  Potte,  the  pilot,  John  P.  Cogg- 
well,  and  the  second  pilot,  Joseph  P.  Cunningham  ;  as  also  those  of  the  commander  of  the 
Tumbes,  of  the  officer  who  boarded  the  Dorcas  C.  Yeaton,  of  the  five  sailors  who  were  in 
the  boat  with  him,  together  with  that  of  the  marine  who  was  transferred  to  Callao  in 
the  barque ;  all  taken  before  the  judge  of  the  first  instance  at  this  port,  sworn  to  and 
subscribed  by  all  of  them,  and  all  evidencing  the  complete  falsity  of  the  allegations  of 
the  protest,  as  the  Honorable  Secretary  of  State  will  perceive  from  the  copy  which  the 
undersigned  has  the  honor  of  transmitting  to  him.  From  these  declarations  Honorable 
Mr.  Cass  will  see  that  the  true  relation  of  the  facts  is  the  following : 

Commander  Duefias  having  been  ordered  to  pursue  and  capture  those  vessels  which, 
according  to  the  information  of  the  government,  had  gone  to  Punta  de  Lobos  and  Pa- 
bellon  de  Pica,  in  collusion  with  the  insurrectionists  of  the  south  of  the  republic,  for  the 
criminal  purpose  of  working  the  deposits  of  national  guano  at  those  points,  met  on  his 
voyage  the  Dorcas  C.  Yeaton,  which  was  sailing  in  that  direction.  He  made  the  usual 
signal  to  her  to  heave  to,  and  sent  an  officer  to  her,  unarmed  and  accompanied  by  five 
men  in  a  boat,  the  men  also  being  unarmed,  in  order  to  ascertain  whence  she  came  and 
whither  she  was  sailing.  The  sailors  remained  in  the  boat,  and  the  captain  went  on 
board  in  the  most  peaceful  manner,  the  captain  receiving  him  courteously  on  the  deck  of 
the  barque.  Being  asked  whence  he  had  come,  and  to  what  point  he  was  going,  the  cap- 
tain answered  that  he  was  on  his  way  to  Iquique,  and  voluntarily  exhibited  his  papers, 
and  as  readily  delivered  them  also  to  the  officer,  who  returned  to  the  steamer.  The 
papers  showing  a  discrepancy,  namely,  that  the  barque  had  been  cleared  for  Callao  by 
the  way  of  Valparaiso,  whence  it  had  proceeded,  whilst  the  Consul  of  the  United  States 
at  that  port  had  cleared  her  for  Iquique,  the  officer  returned  to  inquire  the  cause  of  this 
irregularity,  and  the  captain  of  the  barque,  wishing  to  give  a  satisfactory  explanation, 
proceeded  of  his  own  accord  and  will  aboard  of  the  Tumbes,  where  he  entered  into  a 
free  and  voluntary  communication  with  its  commander.  Mr.  Duefias  being  convinced, 
by  Captain  Potte's  representation,  that  he  had  no  other  object  in  going  to  Iquique  than 
to  secure  freight  to  return  home,  he  promised  him,  if  he  would  return  to  Callao,  he 
would  be  liberally  paid  for  his  delay,  and  that  he  would  procure  him  a  cargo  of  guano 
from  the  Chincha  Islands,  with  a  most  profitable  freight.  Commander  Duefias'  object  in 
making  this  proposition  was  assuredly  to  turn  the  barque  aside  from  a  criminal  under- 
taking, which  might  have  involved  its  owners  in  fatal  consequences,  and  complicated 
the  relations  of  both  nations.  It  went  also  to  deprive  the  insurrectionary  forces  of  the 
advantages  which  they  might  derive  from  the  plundering  of  the  guano  deposits,  by  sell' 
ing  one  more  cargo  of  that  article.  Captain  Potte  could  not  but  find  the  offer  a  most 
advantageous  one,  and  he  not  only  accepted  it,  but  also  asked  Commander  Duefias  for  a 


61 


format  communication  for  the  general  commandant  of  the  marine  at  Callao,  in  order  that 
the  arrangement  might  be  carried  out  without  any  delay ;  requesting,  at  the  same  time, 
that  he  might  be  accompanied  by  an  officer  of  the  Tumbes,  in  the  character  of  a  passen- 
ger, to  bear  this  communication.  To  this  Mr.  Duefias  assented,  and  Captain  Potte  cheer- 
fully proceeded  to  Callao,  where  the  agreement  was  carried  out,  and  he  was  given,  on 
the  part  of  the  government's  consignees,  a  contract  of  freight  to  carry  guano  to  the 
States,  at  the  rate  of  twenty  dollars  per  ton,  and,  besides  this,  the  large  sum  of  nine 
thousand  six  hundred  dollars  for  all  expenses  of  demurrage,  and  such  damages  as  might 
accrue  to  him,  in  any  manner,  from  the  change  of  her  voyage  under  the  circumstances. 
It  is  remarkable  that  this  statement  is  backed  not  only  by  the  declarations  above  cited, 
but  that  also  on  the  1  st  of  February,  three  days  before  the  communication  of  the  Minister 
of  the  United  States  in  Lima,  Captain  Potte  made  affidavit  of  the  same,  and  signed  it 
before  the  Consul  of  the  United  States,  who  certified  to  it,  as  appears  from  the  copy  on 
file  in  this  legation,  embracing  also  the  terms  and  conditions  of  the  agreement.  The  un- 
dersigned has  the  honor  of  tendering  to  the  Secretary  of  State  all  the  official  documents 
relative  to  the  business,  by  which  the  accuracy  of  the  facts  which  he  has  just  related 
will  originally  and  incontestably  appear. 

The  undersigned  has  merely  to  advert  to  the  commentary  which  the  Minister  of  the 
United  States  in  Lima  makes  on  the  expression  used  by  Commander  Dueflas  in  his  official 
communication  or  statement,  when  he  says,  "  I  made  Captain  Potte  come  on  board."  This 
phrase  seems  scarcely  to  be  considered  worthy  of  a  serious  official  communication,  or  of 
special  mention  ;  and  the  undersigned  inclines  to  the  belief  that  the  minister  has  Hot,  in  this 
instance,  appreciated  with  his  usual  accuracy  the  true  value  of  the  words— a  very  natural 
thing  when  a  foreign  language'is  in  question,  however  well  known  that  language  may  be, 
The  phrase  to  "make  come"  does  not  necessarily  imply  the  use  of  force  or  coercion.  A 
friendly  invitation  or  a  mere  suggestion  can  "  make  come"  just  as  well  as  a  threat  or  an 
act  of  violence.  That  Mr.  Duenas  used  the  phrase  in  a  plain  and  not  inoffensive  sense 
is  proved,  not  only  by  his  own  declaration,  but  by  that  also  sworn  to  by  Captain  Potte, 
who,  referring  to  the  interview  on  board  of  the  Twnbes,  and  of  the  other  facts,  says  that 
"in  all  those  acts  there  was,  on  his  part,  the  most  ample  liberty,  without  his  suffering1 
"  any  intimidation."  If  any  greater  confirmation  of  this  solemn  declaration  could  be  re* 
quired  it  might  be  found  in  the  document  cited  above,  which  was  subscribed  before  the 
Consul  of  the  United  States  on  the  1st  of  February,  in  which  Captain  Potte  also  asserts 
"  that  he  has  no  complaint  to  make  nor  blame  to  cast  against  the  said  commander  of  the 
"  Tambes  or  his  government." 

In  view  of  such  facts,  so  authentically  and  solemnly  put  together,  not  only  by  the 
Peruvian  officers  who  participated  therein,  but  by  the  very  witnesses,  themselves  in- 
terested, who  drew  up  the  protest  upon  which  the  Plenipotentiary  of  the  United  States 
has  grounded  his  claim,  it  seems  to  the  undersigned  Unnecessary  to  go  into  a  discussion 
of  the  questions  of  law  which  have  been  broached  in  the  correspondence  between  His 
Excellency  and  the  Minister  of  Foreign  Relations  of  Peru.  The  facts  assumed  having 
no  existence,  there  is  no  ground  for  an  accusation,  nor  can  there  be  any  reason  for  de- 
fence or  vindication.  And  here  the  undersigned  must  declare  his  inability  to  understand 
the  intentions  of  the  said  Plenipotentiary  of  the  United  States  in  stating  in  his  com- 
munication of  the  10th  of  February  to  the  Minister  of  Foreign  Relations  of  Peru,  after 
having  received  the  documents  mentioned,  that  he  sees  "no  good  reason  to  change  or 
"modify  his  demand  for  satisfaction  for  the  offence  committeid  against  the  ilag  of  the 
"  United  States  by  the  commander  of  the  Tumbes."'  The  declarations  of  the  captain  of 
the  Dorcas  C.  Yeaton  and  of  his  mates  have  to  be  either  false  or  tr'ue ;  if  the  former, 
the  cause  of  the  complaint  Which,  according  to  His  Excellency,  exists,  Cannot  be  con- 
ceived, since  they  positively  deny  the  fact  of  violence,  of  arbitrariness  and  coercion^ 
which  was  the  exclusive  ground  for  the  supposed  offence;  if  the  latter,  being  given 
under  oath,  it  is  equally  hard  to  suppose  that  the  United  States  Minister  in  Lima,  or  the 


63 

enlightened  government  which  lie  represents,  can  hold  up  such  persons  to  the  world  as 
•worthy  vouchers  for  a  serious  accusation  against  a  friendly  nation  whose  officers — men 
of  honor  and  of  character — indignantly  deny  it  under  the  solemn  responsibility  of  an 
oath,  whilst  their  government  itself  formally  disclaims  the  offensive  intention  implied 
from  the  presumed  facts.  If  Captain  Potte  and  his  mates  are  capable  of  making  a  false 
declaration,  they  must  be  equally  so  of  making  an  unfounded  protest.  The  one  cannot 
be  ascribed  to  them  without  ascribing  the  other  also. 

The  undersigned  does  not  pretend  to  solve  so  difficult  a  question,  because  it  is  not  his 
duty  to  do  so.  It  is  enough  that,  with  all  due  respect,  he  should  cast  back  a  gratuitous 
accusation,  without  taking  upon  himself  the  defence  of  the  witnesses  who  have  been 
called  to  support  the  charge.  On  the  contrary,  he  would  most  sincerely  wi^h  that  he 
could  find  some  reason  for  impugning  the  assertion  under  oath,  made  by  Captain  Potte 
and  his  mates,  that  he  had  made  his  protest  in  consequence  of  the  instigations  of  the 
Consul  of  the  United  States,  and  of  orders,  as  he  understands,  of  tlie  Minister  resident  of 
this  capital.  If  there  be  no  mistake,  as  the  undersigned  hopes  there  may,  in  this  and 
the  subsequent  statement,  made  by  Captain  Potte,  to  the  effect  that,  in  the  room  of  the 
chief  clerk,  and  in  his  presence,  said  minister  had  reproved  him  for  accepting  the  con- 
tract for  freight,  already  referred  to,  "  adding  that  he  acted  under  bad  advice  ;"  then 
would  be  revealed,  in  a  broader  light,  on  the  part  of  the  Minister  Plenipotentiary  of  the 
United  States  in  Peru,  a  spirit  no  way  subservient  to  the  impartial  examination  of  ques- 
tions of  so  delicate  a  nature,  and  one,  it  may  be,  incompatible  with  the  due  exercise  of 
his  high  functions  at  the  seat  of  government  of  Peru. 

Before  passing  over  to  the  other  question,  to  which  the  undersigned  would  desire  to 
call  the  attention  of  the  very  honorable  Secretary  of  State,  he  cannot  but  advert  to  the 
remarkable  observation  made  by  the  Minister  of  the  United  States  in  Lima,  in  his  com* 
munication  of  the  4th  of  February,  in  which  he  lays  down  the  gravamen,  as  it  were,  of 
the  offence  attributed  to  Commander  Duenas,  in  attempting  to  visit  a  vessel  of  the 
United  States  on  the  high  seas,  "  in  a  time  of  profound  peace."  It  is  hard  to  realize  the 
words  quoted  in  view  of  the  facts  laid  down  by  the  minister  himself,  in  his  communica- 
tion of  the  9th  of  February,  in  which,  in  order  to  sustain  the  legality  of  the  traffic  in 
Which  the  vessels  captured  at  Punta  do  Lobos  and  Pabellon  were  engaged,  His  Excel' 
lency  declares  that  Vivanco's  rebellious  party,  under  whose  protection  the  vessels  re- 
ferred to  pretended  they  were  acting,  was  "in  a  state  of  civil  war''  with  the  lawful 
government,  and  therefore  invested  with  the  rights  of  a  belligerent  nation.  If  the 
revolutionary  party  be  a  belligerent  one,  even  so  must  be  the  government  against  which 
it  is  waging  war ;  and,  consequently,  the  minister  himself,  by  his  own  argument,  declares 
that  "  Peru  is  in  a  state  of  civil  war."  And,  therefore,  according  to  the  doctrine  of  His 
Excellency.  Peru  exhibits  the  spectacle,  somewhat  anomalous  indeed,  of  being  at  one 
and  the  same  time  at  peace  and  at  war.  It  is  at  peace  when  its  belligerent  rights  are  to  be 
denied  ;  it  is  at  war  when  it  is  sought  to  refuse  it  the  right  of  a  nation  at  peace,  and  inj 
vest  the  plunderers  of  its  property  with  the  respectable  character  of  neutrals  engaged  in 
lawful  trade  by  the  laWs  of  war! 

The  Secretary  of  State,  with  his  great  experience  in  questions  of  this  nature,  will  not 
fail  to  perceive  that  the  true  principle  of  the  law  of  nations,  which  applies  to  the  present 
case,  is  equally  removed  from  the  two  extremes,  where  it  is  placed  by  the  Minister  of 
the  United  States  in  Lima.  Without  being  in  a  civil  war,  recognized  as  such  in  the 
interior,  or  by  the  exterior  of  the  republic,  Peru  regrets  the  existence,  in  a  portion  of  her 
territory,  of  a  rebellion  against  the  lawful  government,  supported  by  the  mass  of  the 
nation,  and  recognised  by  other  governments.  Speculation  and  plunder  being  the  exclu* 
Bive  ends  of  that  rebellion,  the  rebels  have  directed  their  forces  almost  exclusively  against 
the  deposits  of  national  guano;  and,  by  means  of  a  war-steamer,  which  the  President  of 
the  Republic  has  declared  to  be  a  pirate,  they  have  been,  from  time  to  time,  successful 
in  defrauding  the  public  treasury  of  large  sums  of  money  from  the  sale  of  guano  at  any 


63 


price,  inviting  the  adventurers  of  other  nations  to  go  and  load  their  vessels  "with  that 
article.  The  illegality  of  this  traffic  requires  no  demonstration  ;  and  the  Government  of 
the  United  States,  which  would  be  the  last  to  tolerate  such  in  its  own  case,  would  also 
not  fail  to  stamp  with  serious  reprobation  any  participation  in  it  by  its  citizens.  As 
little  does  the  undersigned  doubt  that  this  government  would  consider  itself  fully 
bound  to  prevent,  in  its  own  case,  a  spoliation  of  its  property  by  the  citizens  of  another 
nation,  conniving  with  its  own  in  a  state  of  insurrection,  and  to  adopt  measures  for  visiting 
suspicious  vessels  at  those  places  where  they  might  reasonably  deem  it  proper  to  exer- 
cise a  lawful  supervision.  The  Government  of  Peru  and  the  undersigned  by  no  means 
deem  it  necessary,  in  this  case,  to  discuss  or  put  forward  the  right  of  visitation.  Hon- 
orable Mr.  Cass  has  verbally  stated  to  the  undersigned  that  there  are  cases  in  which 
a  national  vessel  might  be  justified  in  visiting  a  merchant  vessel  on  the  high  seas,  and 
that  the  Government  of  the  United  States  would  not,  in  such  cases,  make  a  formal  re- 
clamation ;  and  the  Honorable  Secretary  of  State  had  the  kindness  to  put  a  case  entirely 
applicable  to  the  case  and  circumstances  of  the  Tumbes,  when  she  signalled  the  Dorcas 
C.  Yeaton  to  heave  to.  This  is  enough  to  absolve  the  undersigned  from  the  necessity  of 
insisting  here  on  the  right  which  all  nations  have  to  protect  themselves,  under  certain 
circumstances,  independently  of  the  strict  question  -of  belligerent  arid  neutral  prin- 
ciples. 

The  port  of  Iquique,  to  which  Captain  Potte  was  shaping  his  course,  is  one  of  the 
ports  of  the  Peruvian  territory  frequented  by  the  piratical  steamer  already  mentioned. 
The  principal  cargo  to  be  derived  from  its  neighborhood  must  be  one  of  national  guano. 
The  discrepancy  between  the  clearances,  one  being  for  Callao  and  the  other  for  Iquique, 
clearly  confirmed  the  suspicion,  raised  by  the  direction  which  the  vessel  was  pursuing 
and  the  locality  where  it  was  met.  The  courtesy  with  which,  this  notwithstanding,  she 
was  treated — the  total  absence  of  extortion  or  violence,  and  the  marked  advantages 
which  it  derived  from  the  interruption  of  the  voyage — everything  should  go  to  satisfy 
the  Secretary  of  State,  as  the  undersigned  trusts,  of  the  respect  and  consideration  which 
the  Government  of  Peru  and  its  officers  strive  to  pay  to  the  flag  of  the  United  States, 
and  to  the  rights  of  its  citizens. 

With  these  observations,  the  undersigned  passes  on  to  the  consideration  of  the  de- 
spatch of  the  United  States  Minister  at  Lima,  dated  February  9th,  through  which  His 
Excellency  claims  against  the  Government  cf  Peru  all  the  damages  and  injuries  which 
may  ensue  from  the  capture  of  the  American  vessels  Georyiana  and  Lizzie  Tliompson  by 
said  war-steamer  Titmbes,  and  from  their  subsequent  detention  by  the  Peruvian  Govern- 
ment. His  Excellency  also  calls  for  the  responsibility  of  the  Government  of  Peru  in  the 
premises. 

The  facts  in  which  the  above-mentioned  claim  is  founded  admit  less  controversy  than 
those  of  the  case  discussed  in  the  first  instance.  The  Georgiana  was  captured  at  Punta 
de  Lobos,  on  the  24th  of  January,  1858,  and  the  Lizzie  Thompson,  on  the  same  day,  at 
Pabellon  de  Pica.  Both  had  on  board  part  of  their  cargo  of  guano  from  those  deposits ; 
the  confessed  object  of  their  presence  at  the  points  referred  to  being  to  take  in  guano 
for  exportation  to  foreign  ports.  They  were  taken  under  capture  to  Callao,  where  their 
captains,  H.  A.  Wilson  and  Stephen  Reynolds,  with  the  mate  of  the  Georgiana,  L.  A. 
Hamilton,  after  three  days'  imprisonment,  were  released,  under  security,  as  they  were 
charged  with  a  violation  of  the  criminal  laws  of  the  republic.  The  Minister  of  the 
United  States  in  Lima  deems  it  proper  to  maintain,  in  his  afore-mentioned  communica- 
tion, three  propositions  in  relation  to  those  facts : 

First. — That  neither  the  vessels  nor  their  captains  had  participated  in  any  criminal  or 
scandalous  contraband. 

/Sfeeo»K%.— That  the  arrest  of  the  vessels  and  of  their  officers  was  not  in  virtue  of  a 
perfect  right. 


Thirdly. — That  the  manner  of  the  arrest  and  of  taking  them  to  Callao  was  irregular, 
cruel,  and  illegal 

The  undersigned  intends  to  give  each  of  these  propositions  its  relative  consideration, 
without,  however,  entering  upon  the  discussion  of  some  points  set  forth  in  connection 
with  them  by  the  Honorable  Minister  of  the  United  States — a  connecting  which,  in  the 
humble  opinion  of  the  undersigned,  as  touching  the  legitimate  object  of  the  controversy, 
is  not  quite  as  apparent  as  might  be  desired. 

It  is  needless  to  repeat  that  Punta  de  Lobos  and  Pabellon  de  Pica  are  two  points 
where  deposits  of  natural  guano  are  found,  public  property  of  the  Republic  of  Peru. 
In  the  "  report  on  the  commercial  relations  of  the  United  States  with  foreign  nations," 
transmitted  on  the  4th  of  March,  1856,  to  the  House  of  Representatives,  by  the  worthy 
predecessor  of  the  Honorable  Secretary  of  State,  and  printed  and  distributed  by  order 
of  Congress,  is  to  be  found  at  page  700  of  the  first  volume,  an  exact  description  of  those 
deposits,  their  locality,  and  their  extent.  Article  15  of  the  Commercial  Regulations, 
promulgated  by  the  Government  of  Peru,  in  1852,  declares  that  the  "  vessels  that  take 
"  in  guano  for  foreign  ports  shall  be  allowed  to  do  so  in  the  Chincha  Islands  only."  Ar- 
ticle 114  of  said  regulations  provides  that  "the  exportation  of  guano  shall  be  carried  on 
"  only  by  vessels  under  contract  with  the  government  or  its  agent,"  and  article  113 
states  "  that  vessels  that  may  be  found  at  anchor  on  the  coasts  of  the  islands  belonging 
"  to  the  republic  shall  be  confiscated,  and  moreover,  that,  if  guano  will  have  been  found 
"  aboard,  the  captains  and  crews  to  be  handed  over  to  the  action  of  customary  justice,  to 
"  be  tried  as  delinquents  in  case  of  theft."  The  existence  of  this  regulation  must  be 
and  it  could  not  but  have  been  known  and  understood  in  the  Union ;  for  in  the  same 
"  report,"  officially  presented,  we  find  at  page  685,  and  on  the  ones  following,  of  the 
first  volume,  a  detailed  reference  to  its  provisions,  with  the  special  information  touching 
the  guano  question. 

Besides  what  has  been  cited  we  find  in  their  full  vigor,  and  as  they  still  are,  with 
some  charges  therein  mentioned,  the  decrees  of  the  Government  of  Peru  in  relation  to 
the  contraband  of  guano,  dated  January  14th,  March  21st,  and  May  10th,  1842,  lately 
reprinted  for  abundant  caution  in  the  official  of  the  27th  of  February,  1857.  They  de- 
clare "  that  no  quantity  of  guano  shall  be  taken  out,  for  exportation  to  foreign  ports, 
"from  any  portion  of  the  territory  of  the  republic,  unless  from  the  northern  island  of 
"the  Chiucha  group;''  that  no  authority  of  "the  republic  can,  in  any  case,  grant  permits 
"  to  take  out  guano  for  foreign  exportatation,  and  that  the  custom-houses,  with  the  ex- 
"  ception  of  Callao,  shall  refuse  all  clearances  applied  for;  that  every  national  or  foreign 
"  vessel  that  may  anchor  at,  or  come  to  the  islands  or  places  where  guano  may  be  found, 
"  without  due  permits  from  the  authorities  that  are  empowered  to  grant  them,  shall  be 
"  liable  to  confiscation  ;"  and  that  vessels  that  may  be  engaged  in  contraband,  "  or  may 
"  violate  the  articles  in  relation  to  anchoring  at  or  coming  to  the  guano  islands  or  de- 
"  posits,  or  those  relative  to  the  taking  out  of  guano  from  other  points  except  those  des- 
ignated, and  that  designation  being  confined  to  the  northern  of  the  Chincha  Islands, 
"  shall  be  seized,  and  their  captains  shall  be  brought  to  trial  as  contrabandists." 

Lastly,  the  national  convention  of  the  republic  deemed  it  proper  to  promulgate  its  de- 
cree of  the  1st  of  April,  1857,  which  was  published  in  the  official  paper  of  the  2d  of  said 
month.  It  laid  down  the  following  provision : 

"  That  all  the  guano  exported,  and  thereafter  to  be  exported  from  the  Chincha  Islands,. 
"  or  from  any  other  deposit  of  Peru,  by  disturbers  of  the  public  order,  or  by  virtue  of 
"  contracts  made  with  them,  or  with  their  agents,  shall  at  all  times  be  subject  to  be 
"  claimed  back  as  stolen  national  property,  and  the  parties  responsible  therefor  shall  be 
"  civilly  and  criminally  prosecuted  in  conformity  with  law." 

Such  being  the  provisions  of  the  existing  laws  of  Peru,  laws  in  vigor  at  the  time 


65 


when  the  Georgiana  and  the  Lizzie  Thompson  were  captured — laws  promulgated,  the 
most  of  them,  many  years  back,  and  the  most  recent  of  them  nearly  ten  months  before 
the  arrest  was  made ;  the  Government  of  the  Union  itself  having  nearly  two  years  be- 
fore officially  recognized  and  indicated  the  most  important  of  them  ;  and  it  being  equally 
notorious  and  public  in  the  Union,  from  the  discussion  between  the  two  governments  in 
relation  to  the  Chincha  Islands,  that  the  guano  deposits  in  Peru  are  the  exclusive  prop- 
erty of  the  nation,  the  products  of  which  are  exclusively  worked  out  and  sold  by  the 
agents  of  the  republic  under  contracts;  the  undersigned  will  take  for  granted  that  there 
is  binding  upon  the  captains  and  crews  of  the  vessels  referred  to  an  obligation  to  con- 
form their  action  to  those  laws,  or  to  incur  the  penalties  which  they  provide.  It  being 
also  granted  and  acknowledged,  that  those  vessels  were  met  at  points  interdicted,  not  only 
without  permits  from  the  lawful  authorities  of  the  republic,  but  in  the  act  also  of  doing 
that  which,  under  the  laws,  no  authority  of  the  government,  however  legal  it  may  be, 
can  lawfully  allow  ;  that  considerable  quantities  of  guano,  the  property  of  the  nation, 
had  been  found  on  board  of  those  vessels ;  that  the  captains  themselves  had  accepted 
and  signed  contracts  for  freight,  to  take  the  guano  from  those  points,  in  violation  of  the 
laws  quoted,  and  in  contempt  of  their  authority,  of  respect  for,  and  of  the  rights  of  the 
republic;  it  is  no  easy  matter  to  understand  that  system  of  reasoning  which  results  in 
declaring  them  absolved  from  all  criminal  responsibility. 

Setting  aside  the  observations,  no  doubt  very  interesting  and  worthy  of  the  acknowl- 
edged distinction  of  the  honorable  representative  of  the  United  States  in  I  ima,  touching 
the  rights  of  nations  under  republican  institutions,  the  arguments  by  which  he  maintains 
his  first  and  second  propositions  are  reduced  to  two  : 

First. — That  the  captains  of  the  vessels  arrested  having  gone  to  Tquique  in  the  pursuit 
of  lawful  commerce,  and  being  there  met  with  by  official  agents  of  an  apparently  lawful 
character,  they  were  bound  to  obey  them,  and  to  act  to  the  extent  allowed  by  the  per- 
mission of  those  de  facto  authorities;  and  that  they  had  such  permission  to  go  and  take 
guano  in  the  ports  mentioned,  and  that  if  the  permits  were  illegal,  the  blame  must  not 
attach  to  them,  but  to  the  pretended  authorities. 

Secondly. — That  Peru  was,  and  it  had  for  nearly  two  years  been,  in  a  state  of  civil 
war;  that  the  existence  of  the  revolution  was  well  known;  that,  according  to  the 
modern  doctrine  of  the  rights  of  nations,  the  two  contending  parties  occupy  towaid 
each  other,  and  toward  the  other  nations,  a  belligerent  position,  which  position  imparts 
to  individuals  of  the  friendly  nations  the  rights  of  neutrality,  as  in  a  case  of  perfect  public 
war. 

The  same  discrepancy,  previously  noticed  between  the  "  profound  peace"  of  Hon.  Mr. 
Clay's  communication  of  the  4th  of  February  and  the  state  of  "  civil  war,"  commented 
in  this  note,  seems  to  the  undersigned  to  lie  at  the  ground  of  the  two  arguments  which 
he  has  just  reproduced.  If  the  vessels  in  question  went  as  neutrals  to  Iquique,  prose- 
cuting their  commerce  in  a  port  of  a  nation  at  war,  it  seems  difficult  to  ascribe  to  their 
captains  the  innocent  and  natural  error,  under  the  influence  of  which,  it  is  supposed,  they 
in  good  faith  mistook  the  pretended  authorities  of  the  insurrectionists  for  the  lawful 
authorities  of  the  Government  of  Peru.  If,  on  the  other  side,  they  entered  Iquiqne  as  a 
port  of  a  nation  at  peace,  intending  to  obey  the  laws  and  conform  to  existing  regulations 
of  commerce,  how  can  they  now  be  defended  under  the  supposition  that  they  claimed  the 
rights  of  neutrals  trading  with  a  nation  at  war?  But,  passing  by  this  inconsistency,  or 
what  seems  to  be  one  at  least,  it  strikes  the  undersigned  that  there  is  a  conflict  in  the 
Hon.  Mr.  Clay's  arguments,  and  that  in  a  very  important  point,  with  the  most  sacred 
principles  of  public  law. 

The  principle  that,  in  certain  cases,  a  civil  war  may  confer  the  rights  of  belligerents 
on  the  two  contending  parties,  and  communicate  the  rights  of  neutrals  to  those  who 
trade  with  them,  respectively,  has  no  doubt  beep  admitted  as  a  sound  principle.  But 

9 


66 


this  principle,  which  is  exceptional  in  its  origin  and  legitimacy,  has  never  been  carried, 
as  the  undersigned  with  some  confidence  presume?,  so  far  as  to  assert  that,  in  the  unfor- 
tunate event  of  a  civil  war  in  any  nation,  the  members  of  other  friendly  nations  have  the 
right  of  determining,  by  themselves  and  for  themselves,  the  existence  of  such  a  war, 
without  the  previous  action  and  authority  of  their  respective  governments.  The  under- 
sifned,  on  the  contrary,  thinks  that  he  can  rely  on  the  distinguished  support  of  the 
Honorable  Secretary  of  State,  when  he  advances  it  as  a  sound  and  settled  doctrine  in  such 
cases,  that  the  Government  of  the  United  States  has  first  officially  to  recognize  the  state 
of  civil  war  in  Peru,  and  declare  their  neutrality  therein,  before  their  citizens  can  avail 
themselves  in  Peruvian  territory  of  the  rights  of  neutrals  in  a  belligerent  country. 
Unless  the  undersigned  mistakes,  this  doctrine  has  received  the  illustrious  sanction  of 
the  Supreme  Court  of  the  Union,  in  various  cases,  and  as  decidedly  so,  that  of  tlie 
Courts  of  Great  Britain.  If  it  were  not  so,  if  the  principle  laid  down  by  Mr.  Clay  could 
make  good  that  the  bare  fact  of  the  chiefs  of  an  insurrection  having  enough  of  power 
temporarily  to  command  and  hold  possession  of  the  property  of  the  nation  in  its  territory, 
authorizes  the  members  of  other  nations  to  deal  at  once  with  them  as  the  owners  of 
what  they  thus  hold,  there  could  be  no  security  anywhere,  and  the  door  would  be  thrown 
wide  open  to  every  kind  of  disorder  and  plunder.  The  United  States,  luckily  powerful 
and  happy  so  far,  have  not  gone  through  the  sad  ordeal  of  any  domestic  revolution,  but 
in  the  possible  contingency  of  so  disastrous  an  event,  it  might  be  equally  daring  and 
dangerous  for  the  members  of  any  foreign  nation  to  proceed,  without  the  previous  de- 
termination of  their  own  government  in  the  matter,  to  treat  with  the  rebels  to  help 
them  in  their  spoliations  of  national  property,  and  afterwards  claim,  for  their  defence  or 
justification,  the  rights  of  neutrals  during  the  existence  of  war.  The  undersigned  will 
not  say,  though  such  an  assertion  might  not  be  a  very  rash  one,  that  the  United  States 
would  exact  a  satisfaction  or  a  compensation  from  that  nation  whose  subjects  mi^ht  thus 
expose  themselves  ;  but  they  would  certainly  not  allow  any  national  intervention,  how- 
ever powerful  it  might  be,  to  interfere  with  the  vindication  of  their  outraged  laws.  The 
Government  of  Peru  confidently  relies  upon  the  conviction  that  the  Cabinet  of  Washing- 
ton could  not  wish  to  impose  upon  the  other  nations,  much  less  upon  those  of  inferior 
power,  principles  which  it  would  not  recognize  in  its  own  case. 

If  the  undersigned  Lave  not  erred  in  these  inferences,  there  is  little  to  be  added  rela- 
tive to  the  two  first  propositions  of  the  Minister  of  the  United  States  in  Lima.  It  is  clear 
that  the  captains  referred  to  cannot  shield  themselves  behind  the  pretence  of  war  or  of 
neutrality. 

The  revolutionary  state  in  the  southern  portion  of  the  Republic  of  Peru,  beingVis  pub- 
lic and  notorious  as  it  is  alleged  to  have  been  by  the  Honorable  Mr.  Clay — a  state  of 
confusion  which,  according  to  his  own  communication,  had  been  enduring  for  nearly  two 
years  ;  a  state  publicly  announced  and  freely  commented  upon,  from  its  commencement, 
by  the  whole  press  of  the  Union — how  can  it  be  possible,  in  a  question  of  fact,  to  im- 
pute to  two  American  captains,  intelligent  as  all  men  of  their  class  are,  the  gross  and 
absolute  ignorance  under  which  they  are,  by  His  Excellency,  presumed  to  have  labored 
as  to  so  anomalous  and  so  well  known  a  state  of  things  1  Can  it  be  believed  that,  after 
having  been  in  Iquique  for  the  length  of  time  which  they  spent  there,  they  failed  to 
learn  that  the  port  was  in  possession  of  the  insurrectionists?  Is  it  because  they  were  not 
under  an  obligation,  moral  and  legal,  to  inform  themselves  of  so  important  a  point  ? 
Granting,  for  the  sake  of  argument,  that  they  were  uninformed  of  the  revolutionary  con- 
dition of  the  port,  and  of  its  usurpation  by  the  pretended  authorities  when  they  entered 
Iquique,  is  it  credible  that  they  were  ignorant  of  the  fact  when  they  sailed  out  of  it  ? 
And  aware  of  it,  as  it  was  their  duty  to  be,  and  as  they  no  doubt  were,  being  under  an 
equal  obligation  of  ascertaining  the  laws  of  the  country,  and  paying  obedience  to  them, 
if,  lured  by  a  spirit  of  speculation,' or  of  covetousness,  or  if  it  be  a  mere  spirit  of  adven- 
ture, they  resolved  to  violate  the  regulations  of  the  republic,  to  affiliate  with  the  treason- 


6T 


able  disturbers  of  its  peace  and  to  plunder  its  patrimony,  must  they  not  also  be  held  to 
have  taken  upon  themselves  the  responsibility  and  the  consequences  of  their  course  ?  It 
•would  certainly  be  strange,  were  they  absolved  from  these  for  the  reason  that  one  of  them 
bad  made  a  contract  on  guilty  grounds  with  the  French  consul,  and  that  both  had,  in  the 
port  of  Iquique,  seen  an  English  man-of-war,  as  the  Honorable  Mr.  Clay  so  singularly  in- 
sists upon.  There  is  nothing  improbable  in  the  fact  that  even  a  consul  of  any  nation 
should  fail  in  respect  of  the  laws  of  the  country  in  which  he  exercises  his  functions,  be- 
cause, both  within  the  experience  of  the  Union  and  of  Peru,  such  cases  have  been  known 
to  occur.  It  is,  therefore,  no  way  strange  that  an  armed  vessel  should  remain  in  a  re- 
bellious port,  not  to  countenance  its  rebellion,  but,  on  the  contrary,  to  protect  the  citi- 
zens of  its  flag  against  revolutionary  violence  and  guilt.  The  undersigned  cannot  under- 
stand how  the  captains  alluded  to  can  claim  the  benefit  of  the  good  faith  and  ignorance 
invoked  in  their  behalf  by  the  Honorable  Minister  of  the  United  States  in  Lima,  con- 
fronted by  the  facts  set  forth  by  the  charter  parties  themselves,  under  which  they  were 
acting  when  captured.  It  is  a  remarkable  circumstance  that  while  the  pretended  per- 
mits, granted  by  the  pseudo  commander  of  the  navy,  Don  Felipe  Rivas,  under  which  the 
captains  would  now  take  refuge,  merely  authorize  them  "  to  proceed  south,  to  "  take  in 
"guano,"  neither  of  the  charter  parties  makes  mention  of  any  point  south;  but,  on  the 
contrary,  the  contract  with  the  Lizzie  7'hompson  grants  the  privilege  to  the  charterer  of 
naming  any  of  the  ports  of  Peru,  provided  that  it  be  not  one  more  to  the  north  of  Callao,  and 
theiefore  embracing  the  Chincha  Islands.  Again,  the  contract  for  the  Georgian*  gives  to 
the  freighters  a  free  choice  of  any  of  the  ports  on  the  whole  coast  of  Peru,  north  as  well 
as  south.  An  irresistible  consequence  from  these  facts  is,  that  neither  the  charterers 
nor  the  chartered  vessels  had  any  intention  of  confining  themselves  to  the  southern  ports, 
where  alone  there  was  the  least  shadow  of  an  authority  de  facto,  standing  in  opposition 
to  the  government  of  the  nation,  whilst  it  was  evident  that  the  captains  hud  lent  them- 
selves to  the  schemes  of  the  insurrectionists,  and  had  joined  in  accompliceship  with 
them  to  defraud  the  treasury  of  the  republic,  ready  as  they  were  to  carry  out  their  pro- 
ject, wherever  the  most  inviting  and  least  dangerous  opportunity  might  offer. 

Insomuch  as  the  possession,  de  facto,  by  the  insurrectionists  and  their  pretended 
authorities,  is  concerned,  it  must  be  said  that  from  the  first  outbreak  of  the  revolution 
organized  by  Vivanco  up  to  the  present  hour,  this  leader  has  had  under  his  command, 
or  in  his  favor,  no  portion  of  the  territory  of  the  republic,  with  the  exception  of  the  city 
of  Arequipa;  for  while  the  actual  presence  of  his  armed  forces  continued,  and  at  the 
time  when  the  arrest  of  the  vessels  took  place,  Vivanco  was  besieged  by  the  national 
forces  in  Arequipa,  and  confined  to  that  point,  without  more  authoiity,  of  any  real 
character,  than  that  which  he  exercised  within  its  very  narrow  limits.  It  is  true  that 
the  sometime  national  frigate,  the  Apurimac,  whose  officers  at  the  outset  declared  in 
favor  of  Vivanco  not  having  returned,  with  the  other  vessels  that  had  also  mutinied  in 
the  commencement,  to  its  allegiance  to  the  government — although  its  decree  ha-1  imme- 
diately declared  her  to  be  a  pirate— went  cruising  about  the  coast  with  the  pretended 
naval  commander  on  board,  bombarding  the  towns,  depredating,  stealing,  and  selling  the 
guano  belonging  to  the  nation,  granting  fraudulent  permits  for  its  excavation  and  ship- 
ping, and  protecting  the  vessels  then  loading  in  its  robbery.  This  is  the  exact  history 
of  the  facts,  and  no  one  knows  it  better  than  the  Hon.  Mr.  Clay;  the  hi-tory  of  the 
ostensible  authority,  and  of  the  de  facto  possession,  on  which  His  Excellency  now  relit  a  to 
protect  the  captains  in  the  premises.  The  only  occupation  of  this  piratical  frigate,  and 
of  its  floating  and  itinerant  authorities,  which  it  conveys  from  point  to  point,  is  noto- 
riously that  of  robbing,  and  of  authorizing  and  protecting  robbery.  When  they  were  in 
Iquique,  they  there  put  forth  their  phantom  of  a  government,  and  there  exercised  a 
jurisdiction  of  pirates  over  Punta  de  Lobos,  Pabellon  de  Pica,  and  other  adjacent  points. 
And  it  is  noteworthy  that  long  before  the  events  under  examination,  all  communication 
had  ceased— indeed,  all  relation  between  Vivanco,  Iquique,  Apurimac,  (its  officers,  and 


68 


the  authorities,  which  it  conveys  about,  or  those  that  are  countenanced  by  their  pres- 
ence, being  the  only  shadow  of  a  de  facto  government  that  existed  in  those  parts.)  More- 
over, it  is  highly  important  to  remark,  that  neither  Vivanco  nor  his  government  has, 
through  any  public  decree,  or  act  of  any  kind,  pretended  to  repeal  the  decrees  and  regu- 
lations adduced,  all  prohibiting  the  exportation  to  foreign  parts  of  guano  taken  from  the 
hereinbefore  mentioned  deposits;  so  that,  besides  the  fact  that  neither  he  nor  his  intrusive 
authorities  are  recognized  by  the  Peruvian  nation,  or  by  the  Government  of  the  Unien, 
the  pretended  license  signed  by  Rivas  commands  neither  the  authority  nor  the  sanction 
of  the  so-called  revolutionary  government,  forasmuch  as  it  may  consider  itself  established 
de  facto.  Indeed,  it  is  strange  that  the  Hon.  Mr.  Clay  should  maintain  with  so  much 
energy  that  there  existed  at  Punta  de  Lobos  and  Pabellon  de  Pica,  an  established  de  facto 
government  lidding  those  points,  when  a  national  vessel  of  so  little  tonnage  as  the 
Tumbes  could,  without  resistance,  take  possession  of  the  vessels  that  were  found  there, 
and  thus  assert  and  maintain  the  jurisdiction  of  the  lawful  government;  and  if,  as  sup- 
posed by  the  minister,  the  possession  de  facto  be  the  only  criterion  of  jurisdiction  for 
putting  to  effect  the  fiscal  and  custom-house  laws,  through  means  of  a  seizure,  how, 
then,  could  a  possession  thus  affirmed  and  realized  de  facto  through  the  capture,  by  the 
Tumbes,  of  the  vesstls  in  question,  fail  to  be  considered,  in  point  of  law,  as  a  just  and 
lawful  ground  for  the  seizure  that  was  made?  Surely,  it  will  not  be  maintained  that 
the  fact  ol  holding  the  de  jure  jurisdiction  lessened  the  effect  of  the  possession  de  facto 
of  the  Tumbes,  nor  yet  that  the  presence  of  a  few  insurrectionary  soldiers  on  shore,  or 
at  the  points  mentioned,  could  deprive  the  lawful  government  of  the  right  of  exercising 
in  the  port  that  lawful  jurisdiction  of  which  it  was  deprived  on  shore,  merely  through 
the  violence  of  an  illegal  power.  When  we  speak  of  a  de  facto  authority,  we  are  hound 
to  show  that  it  actually  exists.  Whenever,  at  any  point,  it  lacks  force  to  sustain  itself, 
from  that  moment  its  existence  ceases  there. 

In  view  of  what  precedes,  and  of  the  powerful  reasons  adduced  by  His  Excellency  the 
Minister  of  Foreign  Affairs  of  Peru,  in  his  correspondence  on  the  subject  with  the  Minis- 
ter of  the  United  States,  the  undersigned  flatters  himself  that  proof  is  made  out  of  the 
perfect  right  under  which  his  government  acted  in  the  controverted  cases,  and  of  its 
entire  adherence  to  international  laws,  to  the  treaties  of  1851  between  the  two  nations, 
and  to  the  respect  which  is  due  to  the  dignity  of  the  United  States  and  the  rights  of 
their  citizens. 

All  that  is  now  required  is  the  refutation  of  the  Honorable  Mr.  Clay's  third  proposi- 
tion, in  which,  speaking  of  the  right  exercised  by  the  Peruvian  Government  in  the  arrest 
of  the  vessels  and  crews  referred  to,  as  a  perfect  right,  His  Excellency  denounces  its 
mode  of  execution  as  illegal,  cruel,  if  not  barbarous.  The  language  used  by  His  Excel- 
lency would  be  harsh,  very  harsh,  even  if  they  were  justifiable. 

His  Excellency  at  the  outset  starts  with  a  great  error  when  he  attempts  to  define  the 
arrest  of  the  vessels  and  crews  in  question  as  a  simple  seizure  under  ordinary  custom- 
house laws.  His  Excellency  forgets  the  state  of  insurrection  and  violence  on  which  he 
lays  so  much  stress  in  the  sequence  of  his  arguments.  He  entirely  puts  out  of  view  the 
fact  that  participation  with  the  rebels  in  taking  guano  from  the  deposits  in  question  has 
been  formally  declared  to  be  robbery.  In  His  Excellency's  view  a  mere  blank  is  the 
guilty  complicity  of  the  parties  with  the  pirate  of  the  Apurimac,  in  plundering  the 
public  treasury,  and  thus  supplying  rebellion  with  more  effective  means  of  shedding 
blood  and  resisting  the  lawful  authorities  of  the  country.  Engaged  as  they  were  in  such 
undertakings,  they  certainly  had  no  right  to  expect  either  favor  or  consideration.  To 
rob  the  nation  forcibly  of  its  property,  or  under  the  protection  of  lawless  violence,  can- 
not be  less  than  a  very  serious  crime  in  itself,  because  it  is,  at  the  same  time,  a  violation 
of  the  revenue  laws.  On  the  contrary,  if  there  be  any  distinction  at  all,  on  that  account, 
ib  lies  in  the  circumstance  that  the  greater  crime  absorbs  the  less,  and  imparts  its  own 
character  to  the  act. 


69 


His  Excellency  likewise  forgets  that,  as  he  himself  has  alleged,  the  points  where  the 
arrests  were  made  were  garrisoned  by  some  forces  of  the  insurrectionists,  and  that  the 
piratical  frigate  Apurimac,  with  forces  superior  to  those  of  the  2\imbes,  was  not  far 
distant,  its  principal  occupation  being  that  of  visiting  and  protecting  those  points.  Under 
such  circumstances  there  was  neither  time  nor  room  for  considerations  and  condescensions 
in  regard  of  persons  engaged  in  criminal  acts,  the  breaking-up  of  which  was  the  object 
of  the  visit  made  by  the  Tumbes.  Nor  was  there  time  for  delays;  and  if,  in  the  manner 
in  which  the  vessels  were  taken  and  sent  to  Callao,  there  was  something  of  haste  or 
violence,  surely  the  blame  must  fall  back  on  the  wrong-doers  who,  by  their  conduct, 
created  a  necessity  for  forceful  measures.  The  undersigned  omits  comments  on  the 
observations  of  the  Minister  of  the  United  States  on  the  injustice,  illegality,  and  cruelty 
which  would  have  attended  the  destruction  of  the  vessels  and  abandonment  of  their 
crews,  as  it  is  said  the  commander  of  the  Tumbes  threatened  his  intention  to  do.  The 
vessels  were  not  destroyed,  and  the  fact  is  sufficient  to  preclude  resort  to  possibilities. 
If  a  portion  of  the  crews  was  left  at  the  points  where  they  were  found  with  the  vessels, 
the  fact  grew  out  of  the  sheer  necessities  of  the  case.  The  commander  of  the  Tumbes 
found  five  vessels  of  great  burden.  He  could  not  leave  their  crews  aboard,  because, 
together  with  the  laborers  that  were  collected  with  them,  they  might  have  proved  too 
numerous  for  the  safety  of  the  prizes.  For  the  same  reason  he  could  not  take  them  on 
board  the  Tumbes.  There  was,  therefore,  no  other  resort  than  that  of  leaving  them  in 
the  smaller  boats,  all  sufficient  to  take  them  whithersoever  they  might  choose  to  go ; 
and,  as  a  proof  of  that  sufficiency,  four  days  afterwards,  and  in  their  boats,  they  reached 
Arica,  where  they  were  assisted  by  the  prefect  with  an  allowance  of  fifty  cents  a  day, 
made  to  each  individual,  and  whence  they  were  forwarded  to  Callao,  in  which  port, 
receiving  a  like  allowance,  they  remained  waiting  the  result  of  the  trial  which  had  been 
instituted.  At  the  points  where  they  were  originally  left,  they  had  the  resources  common 
to  the  insurrectionary  forces  there  stationed — sufficient,  at  all  events,  to  repel  the  accu- 
sation of  cruelty,  which  has  been  brought  forward  against  their  abandonment.  The 
captains  went  to  Callao,  under  parole,  in  their  own  vessels,  and  were  sent  to  jail  on  their 
arrival.  All  the  usual  forms  of  law  were  adhered  to  in  their  case,  in  conformity  with 
the  enactments  and  usages  of  the  land,  with  this  favorable  exception,  however,  that  they 
were  released  under  bond,  after  three  days'  detention — an  act  of  courtesy  and  considera- 
tion on  the  part  of  the  government,  at  the  request  of  the  Minister  of  the  United  States, 
without,  therefore,  renouncing  the  perfect  right  upon  which  it  had  stood  from  the  begin- 
ning, in  all  the  proceedings  relative  to  the  case.  The  undersigned  flatters  himself  that 
this  manifestation  of  the  cordial  good  will  which  animates  his  government  will  not  be 
the  less  appreciated  in  view  of  the  singular  and,  to  this  hour,  unexplained  conduct  (diffi- 
cult to  be  explained)  of  Mr.  Miles,  the  United  States  Consul  in  Callao,  who  had  the 
boldness,  as  appears  from  a  communication  of  the  collector  at  Callao,  to  introduce  him- 
self, without  previous  permission,  into  the  place  where  the  captain  and  the  mate  of  the 
Georgiana  were,  officially  to  take  their  declarations;  thus  exercising  a  jurisdiction  which, 
he  could  not  but  be  aware,  belonged  exclusively  to  the  courts  of  the  republic.  The  un- 
dersigned will  probably  find  himself  under  the  obligation  of  formally  bringing  this 
serious  proceeding  of  the  consul  to  the  Hon.  Mr.  Cass'  consideration. 

Meanwhile,  regretting  the  inevitable  length  of  this  note,  he  will  no  further  delay  its 
conclusion. 

The  undersigned  ardently  desires  to  have  it  in  his  power,  as  soon  as  possible  to  com- 
municate to  his  government  the  recognition,  by  the  Cabinet  of  Washington,  of  the 'per- 
fect right  under  which  it  acted  in  the  questions  in  controversy,  and  he  takes  pleasure  in 
reiterating  to  the  Honorable  Secretary  of  State  the  assurance  of  the  sincere  wish  of  his 
government  to  cultivate  and  draw  still  more  closely  the  good  relations  of  friendship 
with  the  Government  of  the  United  States;  and  he  hopes  that  nothing  that  has  occurred 
in.  the  cases  to  which  he  has  referred,  shall,  from  the  exaggeration  or  the  inaccuracy  of 


70 


the  statement  of  facts,  contribute  to  lessen,  in  the  slightest  degree,  the  sentiments  of 
friendly  feeling  on  the  part  of  this  republic  for  that  of  Peru. 

The  undersigned  has  the  honor  of  tendering  to  the  Honorable  Secretary  of  State  the 
assurance  of  his  high  respect  and  distinguished  consideration. 

JUAN  I  DE  OSMA. 
The  very  Honorable  LEWIS  CASS, 

Secretary  of  State  of  the  United  States. 


Mr.  CASS  to  Mr.  OSMA. 

DEPARTMENT  OF  STATE,        ) 
WASHINGTON,   May   22,    1858.  \ 

Sir, — I  have  received  your  note  of  March  27th,  and  have  submitted  it  to  the 
President  for  his  consideration,  and  I  am  charged  by  him  to  make  known  to  you 
his  views  of  the  subject  you  have  presented. 

While  the  confidence  you  have  been  instructed  by  your  government  to  express 
in  the  moderation  and  equity  of  the  Government  of  the  United  States  has  been 
highly  gratifying  to  the  President,  he  regrets  that  it  has  been  accompanied  by  an 
expression  of  dissatisfaction  with  Mr.  Clay,  the  Minister  of  the  United  States  at 
Lima,  for  the  manner  in  which  he  discharged  his  duties  under  the  unpleasant  cir- 
cumstances in  which  he  was  placed  by  the  necessity  of  urging  on  the  Govern- 
ment of  Peru  just  reparation  for  injuries  committed  against  the  persons  and  prop- 
erty of  his  countrymen.  If  Mr.  Clay  has  rendered  himself  justly  obnoxious  to  a 
charge  of  want  of  impartiality  and  of  friendly  disposition  in  his  proceedings,  he  has 
failed  to  represent  the  sentiments  of  his  government,  and  has  adopted  a  course 
which  it  does  not  approve.  The  United  States  cherish  the  most  friendly  feelings 
towards  the  Peruvian  people  and  their  government,  and  take  much  interest  in  the 
advancement  of  tkeir  beautiful  country  in  all  the  elements  of  improvement. 

I  have  carefully  examined  the  correspondence  between  Mr.  Clay  and  the  Secre- 
tary of  State  of  Peru,  and  appreciate  his  position  and  the  zeal  and  ability  he  dis- 
played, without,  however,  adopting  all  his  conclusions.  His  interposition  became 
necessary  in  vindication  of  the  rights  of  his  country,  which,  in  his  opinion,  had  been 
violated,  and  in  that  opinion  his  government  concurs  with  him.  The  evidence 
which  has  been  collected  is  in  some  particulars  contradictory,  but  it  shows  very 
clearly  that  serious  violations  of  the  rights  of  the  United  States  had  taken  place, 
and  I  do  not  perceive  that  the  views  taken  by  Mr.  Clay  can  properly  subject  him  to 
the  complaint  of  partiality  or  ill  feeling. 

I  am  confident  he  knew  too  well  what  was  due  to  his  own  position  and  to  the 
sentiments  of  this  government  to  offer  any  intentional  offence  to  the  friendly  Gov- 
ernment of  Peru.  I  perceive,  on  reviewing  the  correspondence,  that  there  are  some 
indications  of  excited  feeling  on  both  sides,  and  some  expressions  indulged  that  had 
better  been  avoided.  But  I  content  myself  with  this  reference,  without  a  desire  to 
pass  any  further  judgment  upon  it. 

I  beg  leave  also  to  assure  you  that  any  representations  you  may  be  instructed  to 
toake  against  Mr.  Miles,  the  American  Consul  at  Callao,  will  be  received  without 
hesitation,  and  the  facts  investigated  with  a  view  to  mark  his  conduct  with  the  dis- 
approbation of  the  government,  should  it  be  found  that  he  has  failed  in  proper 


respect  to  the  Government  of  Peru,  or  discharged  his  duties  in  an  improper 
manner. 

There  are  three  subjects  of  complaint  presented  by  Mr.  Clay  to  the  Government 
of  Peru.  These  are,  the  boarding  and  detention  of  the  American  vessel  the  Dorcas 
C.  Yeaton  by  the  Peruvian  armed  steamer  the  Tumbes,  and  the  capture  of  two  other 
American  vessels,  the  Georgiana  and  Lizzie  Thompson,  by  the  same  national 
cruiser. 

The  course  pursued  by  your  government  in  offering  an  adequate  compensation 
for  the  interruption  of  the  voyage  of  the  Dorcas  C,  Yeaton,  and  its  acceptance  by 
the  captain  in  satisfaction  of  the  injury,  has  withdrawn  the  question  of  damages  on 
account  of  that  occurrence  from  the  existing  controversy ;  but  the  boarding  of  the 
Dorcas  0.  Yeaton  by  the  Peruvian  vessel-of-war  presents  very  grave  considerations 
for  the  interposition  of  this  government.  The  American  vessel  was  sailing  upon 
the  high  seas,  under  the  flag  of  her  country,  when  she  was  approached  by  the  Peru- 
vian vessel-of-war,  which,  to  adopt  the  expression  used  by  you,  "  made  the  usual 
"  signal  for  her  to  heave  to,"  or,  in  other  words,  fired  a  gun  to  indicate  to  the  un- 
armed ship  that  she  must  stop  and  await  the  pleasure' of  the  armed  one. 

Before  proceeding  to  examine  the  facts,  it  is  necessary  to  lay  down  the  principle 
of  immunity  which  protects  the  vessels  of  every  independent  power  upon  the 
ocean  from  search  or  seizure  by  another  power.  In  a  recent  correspondence  with 
Lord  Napier,  the  Minister  of  her  Britannic  Majesty  to  the  United  States,  I  had 
occasion  to  investigate  this  subject,  and  to  make  known  the  views  of  the  United 
States  in  relation  to  it,  and  their  determination  not  to  submit  to  the  detention  and 
search  of  their  vessels  in  time  of  peace  under  any  pretext  whatever.  I  take  the 
liberty  of  enclosing,  for  your  information,  a  copy  of  the  public  documents  contain- 
ing that  letter,  and  inviting  your  attention  to  the  marked  paragraphs,  (pages  47, 
48,  and  49,)  explanatory  of  the  position  assumed  by  this  government,  and  which  is 
applicable  to  the  vessels  of  the  United  States  in  every  sea  where  they  may  pene- 
trate. 

You  will  perceive  that  the  only  exception  to  the  entire  immunity  of  their  vessels 
which  is  admitted  by  this  government,  is  the  acknowledged  right  of  belligerents 
to  enter  a  neutral  merchant  vessel,  in  time  of  war,  to  ascertain  her  true  character, 
and  whether  she  has  contraband  articles  of  war  on  board. 

Whether  the  civil  war  which  was  recently  prevailing  in  Peru,  and  is  now  hap- 
pily terminated,  gave  to  the  contending  parties,  reciprocally,  the  rights  of  belliger- 
ents, so  far  as  regards  the  other  powers  of  the  world,  which  you  deny,  is  a  subject 
into  which  I  need  not  enter,  as  you  explicitly  state  that  the  proceeding,  in  relation 
to  the  Dorcas  0.  Yeaton,  had  ho  reference  to  any  such  pretension. 

One  remark,  however,  in  relation  to  this  branch  of  the  subject,  seems  called  for, 
in  consequence  of  the  allusion  you  have  twice  made  in  your  letter  to  the  views 
presented  by  Mr.  Clay,  concerning  the  situation  of  Peru  at  the  time  of  the  aggres- 
sion complained  of;  views  which  you  consider  incorrect  and  inconsistent,  and  which 
you  are  pleased  to  characterize  as  "remarkable."  I  cannot  concur  with  you  in 
your  censure  of  the  position  taken  by  Mr.  Clay,  but,  on  the  contrary,  consider  it 
entirely  justified  by  the  circumstances.  You  object  that  Mr.  Clay  u  lays  down 
"  the  gravamen,  as  it  were,  of  the  offence  attributed  to  Commander  Duenas,  in  at- 
"  tempting  to  visit  a  vessel  of  the  United  States  on  the  high  seas,  in  a  time  of  pro- 
"  found  peace,"  &c.,  while  at  the  same  time  that  minister  "  by  his  own  argument 
"  declares  that  Peru  is  in  a  state  of  civil  war."  I  do  not  consider  the  views  pre- 
sented by  Mr.  Clay  justly  liable  to  the  objections  you  urge.  Peru,  so  far  as  re- 


72 

spects  the  effect  of  its  political  condition  upon  its  intercourse  with  other  powers, 
was  in  a  state  of  peace.  Neither  of  the  parties  contending  for  the  government  of 
the  republic  claimed  any  of  the  rights  of  a  belligerent,  connected  with  that  inter- 
course, so  that  the  foreign  relations  of  the  country  were  undisturbed  by  its  internal 
commotions.  No  blockade  was  proclaimed,  nor  were  foreign  vessels  pronounced 
to  be  neutrals,  and  subject  to  search  and  seizure  for  the  reasons  recognized  by  the 
laws  of  nations — conditions  which  bring  with  them  the  partial  interruptions  to 
which  foreign  commerce  in  periods  of  public  war  is  exposed.  On  the  contrary, 
you  maintain  in  your  letter  to  me  that  the  state  of  things  in  Peru  brought  with  it 
no  belligerent  rights ;  that,  in  fact,  there  was  no  civil  war,  but  a  rebellion  merely 
against  the  lawful  government.  I  shall  not  undertake  to  settle  any  general  prin- 
ciple by  which  the  true  character  of  an  insurrectionary  movement  in  a  country 
may  be  tested,  and  under  what  circumstances  it  becomes  a  contest  for  a  change  of 
the  government,  giving  to  it  the  attributes,  together  with  the  just  consequences  of 
a  civil  war.  It  is  sufficient  to  say  that  the  situation  of  the  contending  parties  in 
Peru,  and  the  avowed  objects  of  the  insurrectionary  leaders,  together  with  the  ex- 
tent of  their  operations,  and  also  the  extent  and  importance  of  the  portion  of  the 
republic  which  they  occupied  and  governed  at  different  periods  of  the  struggle, 
made  that  contest  a  civil  war.  And  it  was  accompanied,  so  far  as  respects  the  in- 
tercourse of  other  powers  with  Peru,  with  all  the  rights  which  belong  to  that  con- 
dition, and  which  either  of  the  parties  was  disposed  to  claim  and  exercise  in  con- 
formity with  the  recognized  principles  of  the  law  of  nations. 

While  informing  me  that  you  deem  it  unnecessary  "  to  discuss  or  put  forward 
"  the  right  of  visitation,"  you  remark  that  in  a  conversation  you  had  with  me,  I 
stated  "  there  were  cases  in  which  a  national  vessel  might  be  justified  in  visiting  a 
"  merchant  vessel  on  the  high  seas,  and  that  the  Government  of  the  United  States 
"  would  not,  in  such  cases,  make  a  formal  reclamation,"  and  that  I  had  put  a  case 
illustrative  of  this  position  applicable  to  the  circumstances  of  the  Tumbes. 

I  regret  that  my  views  of  this  subject  should  have  been  misconceived  upon  the 
occasion  to  which  you  refer.  Whether  the  error  is  to  be  attributed  to  their  being 
imperfectly  expressed,  or  imperfectly  understood,  I  am  unable  to  say ;  but  I  am 
sure  you  desire  to  ascribe  to  me  precisely  the  opinion  you  supposed  I  entertained. 
But  by  adverting  to  the  extracts  of  the  letter  to  Lord  Napier,  which  accompany 
this  communication,  you  will  perceive  at  once  that  I  do  not  occupy  the  position 
you  assign  to  me.  I  claim  a  total  immunity  for  the  vessels  of  the  United  States 
"  upon  the  common  and  unappropriated  parts  of  the  ocean,"  to  use  the  expression 
of  Lord  Stowell,  in  time  of  peace,  under  all  circumstances.  There  is  no  case  in 
which  a  forcible  entrance  into  them  can  be  justified  by  another  power.  That  is, 
there  is  no  case  in  which  such  entry  is  a  lawful  act.  It  may  be  an  excusable  one 
under  peculiar  circumstances  of  entrance  and  of  conduct,  which  might  well  induce 
the  aggrieved  party  to  renounce  all  claim  for  reparation ;  as,  for  instance,  if  a 
piratical  vessel  were  known  to  be  cruising  in  certain  latitudes,  and  a  national  armed 
ship  should  fall  in  with  a  vessel  sailing  in  those  regions,  and  answering  the  descrip- 
tion given  of  the  pirate,  the  visitation  of  a  peaceable  merchantman  in  such  a  case, 
with  a  view  to  ascertain  her  true  character,  would  give  no  reasonable  cause  of 
offence  to  the  nation  to  which  she  might  belong,  and  whose  flag  she  carried. 

But  if  I  understand  correctly  the  position  you  take  in  behalf  of  your  govern- 
ment respecting  the  detention  of  the  Dorcas  C.  Yeaton,  it  is  unnecessary  for  me 
to  discuss  the  general  question  of  the  claim  of  visitation,  except  to  express  the 
dissent  of  the  United  States  from  the  principles  in  relation  to  it  which  you  have 


73 

laid  down.  That  being  done,  I  have  to  observe  that  the  question  of  private  injury 
having  been  removed  by  the  action  of  Peru,  if  the  entrance  into  the  American 
vessel  were  a  peaceable  one,  without  violence  or  menace,  the  United  States  have 
no  demand  to  make  of  the  government  of  your  country,  either  in  satisfaction  of 
the  act  or  for  the  punishment  of  the  officer  by  whose  orders  it  was  committed. 
There  is  conflicting  testimony  as  to  the  precise  circumstances  which  occurred,  but 
there  is  no  version  of  them  which  attributes  any  offensive  character  to  the  transac- 
tion. Assuming,  therefore,  that  such  are  the  views  of  your  government,  and  the 
use  of  force  on  this  occasion  being  denied  and  disavowed  on  its  behalf,  the  United 
States  have  no  longer  any  cause  of  complaint  against  the  Government  of  Peru  for 
this  detention  of  one  of  their  vessels. 

But  while  I  am  gratified  at  being  able  to  give  you  this  assurance,  I  think  it 
proper  to  remark,  that  the  circumstances  of  this  occurrence,  independent  of  the 
statement  of  the  persons  present,  may  well  have  led  Mr.  Clay  to  believe  that  the 
entrance  into  the  American  vessel  was  not  altogether  a  peaceable  one. 

The  Peruvian  armed  steamer  was  sailing  upon  the  high  seas  with  the  purpose,  as 
you  avow,  of  preventing  the  vessels  of  other  powers  from  resorting  to  the  guano 
deposits.  It  is  not  denied  that  Peru  has  the  right  to  exercise  due  vigilance  in 
enforcing  her  revenue  laws  within  a  reasonable  distance  of  her  shores,  but  this 
should  be  done  by  a  preventive  service,  stationed  in  the  neighborhood  of  the  place 
where  a  contraband  trade  is  anticipated,  and  not  by  vessels  traversing  the  high 
seas,  exercising  an  arbitrary  jurisdiction  over  the  commerce  of  other  powers,  and 
exposing  it  to  vexatious  interruptions  and  injuries.  And  the  measure  of  keeping 
an  armed  steamer  upon  the  ocean  for  this  purpose  is  liable  to  another  objection,  not 
less  decisive  as  to  its  condemnation.  The  Tumbes  belonged  to  the  government, 
against  which  the  revolutionary  party  was  contending,  and  was  acting  under  its 
orders.  Those  orders  were  to  intercept  by  force  all  communications  with  various 
places  in  the  possession  and  under  the  jurisdiction  of  the  adverse  party.  The 
United  States  deny  the  right  of  interference  in  such  cases,  for  reasons  which  will 
be  more  fully  developed  in  the  observations  I  shall  present  respecting  the  capture 
of  two  other  American  vessels,  the  Lizzie  Thompson  and  the  Georgiana.  The  orders 
and  destination  of  tbe  steamer  necessarily  led  to  the  opinion  that  force  was  to  be 
used  in  the  accomplishment  of  the  object  of  her  cruise,  and  thus  the  statements 
made  to  the  American  consul  upon  this  point  were  the  more  readily  credited, 
and  especially  when  taken  in  connection  with  the  arrangement,  just  and  proper, 
indeed,  which  was  made  for  the  satisfaction  of  the  owners.  The  large  sum  of 
$9,600  voluntarily  offered  by  the  commander  of  the  Tumbes  for  the  short  deten- 
tion of  a  few  hours  of  the  American  vessel,  not  unnaturally,  however  unjustly,  may 
have  induced  the  opinion  that  the  Peruvian  officer  felt  that  he  had  committed 
a  grave  error,  which  might  have  serious  consequences,  unless  atoned  for  by  a 
mutually  satisfactory  arrangement.  Had  no  force  been  used  or  threatened,  there 
was  no  error  to  correct.  Nor  is  this  consideration  weakened  by  one  of  the  reasons 
given  by  you  for  the  liberal  offer  of  the  Peruvian  officer,  that  a  prosecution  of  a 
voyage  to  the  guano  deposits  might  involve  the  owners  of  the  vessel  in  fatal  con- 
sequences. A  motive  of  action  in  the  disposal  of  public  funds  to  foreigners,  to 
prevent  them  from  engaging  in  what  was  considered  an  illegal  traffic,  scarcely 
reconcileable  with  the  condition  of  the  parties. 

The  capture  of  the  Lizzie  Thompson  and  of  the  Georgiana,  two  American  vessels, 
furnishes  another  subject  of  complaint,  and  the  United  States  confidently  appeal  to 
the  justice  of  the  Government  of  Peru  for  such  satisfaction  as  this  violent  and  un- 
10 


Y4: 


just  seizure  demands,  and  as  is  due  to  the  amicable  relations  subsisting  between  the 
two  countries.  The  facts  lie  within  a  narrow  compass,  and  in  their  main  features 
are  indisputable.  These  vessels,  whose  capture  and  the  harsh  treatment  of  whose 
crews  form  the  subject  of  this  reclamation,  were  owned  by  American  citizens,  and 
left  the  United  States  with  regular  clearances;  one,  the  Georgian^  for  Valparaiso,  in 
Chile,  and  the  other,  the  Lizzie  Tho?npson,  for  Iquique,  in  Peru.  Arrived  at  their 
ports  of  destination,  they  disposed  of  their  respective  cargoes,  barley  and  lumber  ; 
but  the  Georgiana  was  required  by  the  consignees  to  deliver  her  freight  at  Iquique, 
or  at  another  place  in  Peru  called  Mala.  When  they  reached  Iquique  the  captains 
found  a  civil  war  raging  in  the  country,  where,  indeed,  it  had  existed  for  almost 
two  years,  one  of  the  contending  parties  seeking  to  retain  possession  of  the  gov- 
ernment, and  the  other  to  obtain  it  by  force.  This  movement  had  been  going  on 
with  varied  success,  and  during  its  progress,  as  stated  by  Mr.  Clay,  and  not  dis- 
puted, the  insurrectionary  party  got  possession  of  some  of  the  important  ports  of 
Peru,  and,  while  holding  them,  they  exercised  all  the  functions  of  government,  as 
well  those  relating  to  external  as  to  internal  concerns.  Vessels  were  cleared,  and 
all  the  necessary  acts  performed  which  were  required  by  the  operations  of  commer- 
cial intercourse.  These  ports  extended  almost  from  the  southern  to  the  northern 
boundary  of  the  country.  Among  others  thus  occupied  by  the  insurrectionists 
were  the  port  of  Iquique,  and  also  two  small  places,  Punta  de  Lobos  and  Pabellon 
de  Pica,  in  its  vicinity,  all  of  which  were  in  their  possession  when  the  two  Ameri- 
can vessels  arrived  at  Iquique  and  sought  employment.  The  Custom-House  was 
open,  and  the  officers  appertaining  to  it  in  the  regular  discharge  of  their  duties,  and 
the  necessary  papers  for  the  entrance  and  clearance  of  vessels  were  readily  granted. 
The  revolutionary  party  had  full  possession  of  the  government  at  the  points  indi- 
cated. The  true  bearing  of  this  fact  is  not  weakened,  as  you  suppose,  by  calling 
the  military  detachments  maintaining  possession  at  the  two  small  points  "  a  few 
insurrectionary  soldiers,"  because  if  they  were  sufficiently  numerous,  as  they  un- 
doubtedly were,  to  effect  the  object,  the  number  actually  engaged  in  the  service 
becomes  a  question  of  no  importance,  and  in  a  subsequent  part  of  your  note  you 
admit  that  these  places  "  were  garrisoned  by  some  forces  of  the  insurrectionists," 
&c. 

Under  these  circumstances,  the  usual  commercial  relations  between  Peru  and  the 
United  States  were  continued,  and  the  vessels  of  the  former  resorted  to  the  ports  of 
the  latter,  carrying  freight  and  seeking  employment,  as  before.  In  doing  so,  and 
while  conforming  to  the  regulations  and -submitting  to  the  authorities  they  found 
established  there,  are  they  liable  to  seizure  and  condemnation  and  their  crews  to 
punishment  by  the  adverse  party  ?  The  United  States  maintain  they  are  not,  and 
that  no  such  principle  has  been  recognized  during  the  civil  wars  which  have  been  so 
prevalent  in  various  countries.  On  the  contrary,  commerce  has  been  often  carried 
on  without  regard  to  these  internal  contests,  and  the  established  functionaries  at 
the  various  ports  of  entrance  have  exercised  all  necessary  authority.  The  preten- 
tion  advanced  by  your  government,  which  would  render  all  these  proceedings  liable 
to  be  declared  void,  cannot  be  successfully  maintained.  If  recognized,  it  would 
expose  foreign  commerce  to  the  most  oppressive  exactions  and  interruptions.  It 
would  enable  either  party,  acquiring  possession  of  a  place,  to  disregard  all  the  offi- 
cial acts  which  had  been  done  by  its  opponents  while  occupying  it,  and  enforce  the 
repayment  of  all  public  charges,  though  previously  fully  satisfied,  together  with  the 
forfeiture  of  vessels  and  the  punishment  of  their  crews. 

You  claim  for  the  government  at  Lima,  during  the  existence  of  the   contest. 


authority  over  the  whole  country,  and  the  duty  of  obedience  from  every  person  re- 
siding in  it,  whether  citizen  or  stranger.  A  similar  claim  is  very  often  put  forward 
in  cases  of  civil  commotion,  and  is  not  seldom  urged  at  the  same  time  by  both  par- 
ties. It  cannot  be  admitted  where  a  civil  war  is  raging,  and  that,  in  the  opinion  of 
this  government,  was  the  condition  of  Peru.  A  condition  which  conferred  upon  de 
facto  rulers  the  right  to  govern  such  portions  of  the  country  as  they  were  able  to 
reduce  to  their  possession.  It  is  the  duty  of  foreigners  to  avoid  all  interference 
under  such  circumstances,  and  to  submit  to  the  power  which  exercises  jurisdiction 
over  the  places  where  they  resort,  and  while  thus  acting  they  have  a  right  to  claim 
protection,  and  also  to  be  exempted  from  all  vexatious  interruption  when  the  as- 
cendancy of  the  parties  is  temporarily  changed  by  the  events  of  the  contest. 
Undoubtedly,  the  considerations  you  urge  respecting  the  true  character  of  an  armed 
opposition  to  a  government  are  entitled  to  much  weight.  There  may  be  local  in- 
surrections, armed  opposition  to  the  laws,  which  carry  with  them  none  of  the  just 
consequences  recognized  by  the  law  of  nations,  as  growing  out  of  a  state  of  civil 
war.  No  fixed  principle  can  be  established  upon  this  subject,  because  much  de- 
pends upon  existing  circumstances.  Cases,  as  they  arise,  must  be  determined  by 
the  facts  which  they  present  and  the  avowed  objects  of  the  parties,  their  relative 
strength,  the  progress  they  respectively  make,  and  the  extent  of  the  movement,  as 
well  as  other  circumstances  must  be  taken  into  view.  While  you  do  not  deny  that 
there  may  be  civil  wars,  carrying  with  them  the  consequences  to  which  I  have  re- 
ferred, you  consider  the  contest  in  Peru  comparatively  an  unimportant  movement — 
an  insurrection,  indeed,  entitled  to  no  such  distinction.  I  do  not  concur  in  this 
view,  nor  does  it  appear  to  have  been  always  concurred  in  by  the  government  you 
represent.  Mr.  Clay  appeals  to  some  of  the  proceedings  of  the  government  at 
Lima  in  proof  of  its  recognition  of  the  character  of  the  contest.  And  certainly  the 
negotiation  with  the  military  and  naval  officers  at  Arica,  belonging  to  the  revolu- 
tionary party,  by  the  direction  of  that  government,  and  for  their  submission  to  its 
authority,  indicates  very  clearly  the  opinions  of  both  parties,  asserted,  indeed,  in 
the  official  documents,  that  a  civil  war  was  prevailing  in  the  country.  The  propo- 
sitions made  by  the  chiefs  of  the  revolutionary  party  upon  that  occasion  maintained 
that  of  u  their  own  free  and  spontaneous  will  "  they  have  manifested  to  the  govern- 
ment commissioners  "  their  desire  to  put  an  end  to  the  civil  wTar  which  afflicts  the 
"  republic,  which  they  might  prolong  with  the  elements  they  possess,"  and  offer 
the  terms  upon  which  they  will  submit.  These  terms  were  unconditionally  ac- 
cepted by  the  commissioners  and  were  approved  and  ratified  by  the  Council  of 
Ministers,  and  thus  was  the  state  of  civil  war  fully  recognized. 

Besides  your  estimate  of  the  partial  nature  of  the  movement,  which,  in  your 
opinion,  divests  it  of  the  true  character  of  a  civil  war,  if  I  understand  your  position, 
you  consider  some  act  of  a  foreign  government  recognizing  the  existence  of  such 
a  war  to  be  necessary  before  its  citizens  can  claim  the  protection  which  the  United 
States  demand  for  their  own. 

I  must  express  my  dissent  from  this  position,  at  least  in  its  application  to  these 
two  American  vessels,  I  do  not  propose,  however,  to  investigate  the  general  pro- 
position as  to  the  necessity  of  this  external  political  interference,  because  such  a 
discussion  is  not  demanded  for  any  purpose  1  have  in  view.  Cases  have  been  put, 
and  may  be  put  again,  which,  in  the  opinion  of  high  authorities,  require  such  a 
measure  before  they  carry  with  them  the  consequences  attached  to  the  condition  of 
civil  war.  Such  cases  may  relate  to  the  declaration  of  a  blockade,  to  a  claim  to 
search  vessels  as  neutrals,  and  to  the  exercise  of  other  belligerent  powers  assumed 


by  the  hostile  rulers.  By  what  public  act,  whether  proclamation  or  otherwise,  this 
recognition  must  take  place  I  have  not  found  laid  down.  I  am  not  aware  that,  in 
this  country,  any  solemn  proceeding,  either  legislative  or  executive,  has  been 
adopted  for  the  purpose  of  declaring  the  status  of  an  insurrectionary  movement 
abroad,  and  whether  it  is  entitled  to  the  attributes  of  a  civil  war,  unless,  indeed,  in 
the  formal  recognition  of  a  portion  of  an  empire  seeking  to  establish  its  indepen- 
dence, which,  in  fact,  does  not  so  much  admit  its  existence  as  it  announces  its 
result,  at  least,  so  far  as  regards  the  nation  thus  proclaiming  its  decision.  But 
that  is  the  case  of  the  admission  of  a  new  member  into  the  family  of  nations. 
Such  is  not  the  condition  of  Peru.  She  had  already  attained  that  position,  and  her 
intestine  difficulties  arose  out  of  an  effort  to  change  the  administration  of  the  gov- 
ernment, which  was  a  matter  of  purely  domestic  concern,  not  touching  foreign 
powers,  unless  in  the  progress  of  the  contest  their  interests  were  brought  into  ques- 
tion. So  long,  therefore,  as  such  a  contest  preserves  its 'domestic  character  there  is 
no  necessity  for  external  interposition,  unless,  indeed,  there  be  a  determination  to 
take  part  with,  and  aid  one  of  the  parties  by  the  direct  application  of  force,  or  by 
the  exertion  of  political  influence.  Such  has  not  been  the  policy  of  the  United 
States,  and  they  carefully  abstained  from  all  interference  with  the  troubles  in  Peru, 
content  to  abide  the  decision  which  its  people  might  make  ;  and  this  government 
permitted  the  diplomatic  intercourse  of  the  two  countries  to  continue  unchanged, 
as  a  measure  demanded  by  their  mutual  interests  and  not  as  an  acknowledgment 
of  the  pretensions  of  either  of  the  rival  parties.  It  is  therefore  unnecessary  to 
advert  to  the  effect  of  a  formal  recognition  by  the  executive,  and  how  far  that  act 
of  political  power  would  be  obligatory  upon  the  courts  of  justice  and  binding  upon 
the  rights  of  individuals.  Whether  a  civil  war  was  prevailing  in  Peru  is  a  question 
of  fact  to  be  judged  by  the  proofs,  as  the  existence  of  a  war  between  two  inde- 
pendent nations  is  a  similar  question,  to  be  determined  in  the  same  manner  where — 
as  is  often  the  case,  at  least  in  this  country  —there  is  no  public  authoritative  recog- 
nition of  it.  Foreigners  in  Peru  were  subject  to  the  local  jurisdiction  and  bound 
to  submit  to  it,  and  while  so  submitting  they  were  entitled  to  protection  and  not 
justly  liable  to  be  called  in  question  for  such  obedience  upon  any  change  of  au- 
thority consequent  upon  the  progress  of  military  events. 

You  will  perceive  by  this  view  that  the  importance  you  attach  to  the  fact  that 
the  American  captains  could  not  be  ignorant  of  the  true  state  of  things  in  Peru,  a 
fact  in  which  you  find  a  justification  for  the  proceedings  that  took  place  affecting 
them,  becomes  a  subject  of  no  importance  whatever.  Ignorant  or  informed  of  the 
situation  of  Peru,  their  rights  and  duties  were  precisely  the  same.  They  had  a 
right  to  enter  any  port  of  the  republic  open  to  foreign  commerce,  and  not  blockaded, 
for  the  prosecution  of  their  commercial  enterprises ;  and  it  was  their  duty  after 
such  entrance  to  obey  the  authorities  they  might  find  established  there.  And  the 
same  principle  which  is  applicable  to  the  jurisdiction  of  a  de  facto  government 
over  persons,  applies  with  equal  force  to  questions  of  internal  administration, 
touching  the  public  revenue.  These  are  subjects  which  follow  the  possession  of 
the  powers  of  government.  The  views,  therefore,  which  you  present  at  some 
length,  of  the  laws  of  Peru,  providing  for  the  regulation  of  the  trade  in  guano,  and 
prescribing  penalties  for  their  violation,  have  no  practical  connection  with  the  case 
of  these  two  American  vessels.  The  true  construction  of  these  regulations,  their 
repeal  or  suspension,  of  modification,  or  application,  are  questions  of  administration 
to  be  determined  by  the  existing  administrative  power,  to  whose  decision  foreign- 
ers must  submit,  '  When  the  revenue  officers  at  Iquique,  acting  under  the  authority 


of  the  de  facto  government,  gave  the  necessary  permission  for  the  purchase  of 
guano  at  the  places  indicated,  then  subject  to  the  authority  of  that  government, 
the  American  captains  had  the  right  to  repair  thither  and  to  take  that  article  on 
board  their  vessels  for  freight,  in  conformity  with  the  provisions  of  their  charter 
parties.  And  the  transfer  of  the  possession  of  these  places  while  the  vessels  were 
engaged  in  this  employment,  could  justly  work  no  forfeiture  for  acts  previously 
done  under  these  circumstances,  nor  subject  the  officers  or  crew  to  punishment. 
The  United  States  recognize  no  pretension  for  such  interference,  but  hold  on  to  the 
stipulations  of  their  treaty  with  Peru,  which  guarantees  protection  to  their  citizens 
without  regard  to  whatever  changes,  violent  or  peaceable,  may  take  place  in  the 
government  of  that  country. 

Connected  with  this  branch  of  the  subject,  you  inquire  how  it  happens  "  if  pos- 
"  session  de  facto  be  the  criterion  of  jurisdiction  for  the  enforcement  of  fiscal  or 
"  Custom-House  laws,  (for  all  authority  you  might  have  added,)  that  the  possession 
"  affirmed  and  realized  de  facto  through  the  capture  by  the  Tumbes  of  the  vessels 
"  in  question  failed  to  be  considered  in  point  of  law  as  a  just  and  lawful  ground  for 
"  the  seizure  that  was  made  ?" 

This  question  admits  of  a  satisfactory  answer  and  a  brief  one.  While  contending 
parties  are  carrying  on  a  civil  war,  those  portions  of  the  country  in  the  possession 
of  either  of  them  become  subject  to  its  jurisdiction,  and  persons  residing  there  owe 
tO  it  temporary  obedience.  But  when  such  possession  is  changed  by  the  events  of 
the  war,  and  the  other  party  expel  its  opponents,  the  occupation  it  acquires  carries 
with  it  legitimate  authority,  and  the  right  to  assume  and  exercise  the  functions  of 
the  government.  But  it  carries  with  it  no  right,  so  far  at  any  rate  as  foreigners 
are  concerned,  to  give  a  retroactive  effect  to  its  measures,  and  expose  them  to 
penalties  and  punishments,  and  their  property  to  forfeiture  for  acts  which  were 
lawful  and  approved  by  the  existing  government  when  done.  If  the  Government 
at  Lima  had  taken  forcible  possession  of  the  places  where  the  two  American  vessels 
were  at  anchor,  and  had  established  its  authority,  it  would  then  have  been  entitled 
to  demand  that  such  authority  should  be  recognized  and  obeyed,  and  to  enforce  it, 
if  necessary,  so  far  as  might  regard  all  transactions  occurring  during  such  occupa- 
tion, without,  however,  affecting  existing  rights.  The  principle  is  clear,  but  it  does 
not  appear  that  the  circumstances  called  for  its  application.  JSTo  possession  of  any 
portion  of  the  country  in  question  seems  to  have  been  taken  by  the  Tumbes.  It  is 
admitted,  indeed,  that  that  vessel  exercised  no  jurisdiction  "on  shore."  She 
sailed  into  the  small  ports  il  garrisoned"  by  the  other  party,  and  in  the  absence  of 
its  two  armed  vessels,  and  made  "  capture"  and  "  seizure"  of  the  American  vessels, 
and  then,  for  aught  that  appears,  abandoned  the  position  and  left  the  adverse 
jurisdiction  as  she  found  it.  This  is  no  rightful  proceeding  under  any  circum- 
stances attending  a  civil  war,  and  still  less  under  the  circumstances  in  which  it  took 
place. 

The  cutting  out  of  these  vessels  resembles  a  piratical  enterprise  rather  than  the 
exertion  of  a  legitimate  power  against  the  property  of  a  friendly  nation  under  the 
authority  of  an  established  government. 

Upon  a  full  consideration  of  the  subject,  the  President  indulges  the  confident 
expectation  that  the  Government  of  Peru,  on  reviewing  the  circumstances,  will  not 
hesitate  to  make  such  compensation  for  the  capture  of  the  Georgiana  and  of  the 
Lizzie  Thompson,  and  for  the  injuries  to  the  captains  and  the  crews,  as  these  violent 
transactions  call  for. 


78 


There  is  another  incident  connected  with  these  occurrences  to  which  I  invite 
your  attention. 

Mr.  Clay  has  complained  of  the  conduct  of  the  commander  of  the  Tumbes  for  a 
want  of  humanity,  in  his  treatment  of  the  crews  of  the  two  captured  American 
vessels.  This  charge  you  regard  as  unfounded,  and  the  course  pursued  upon  that 
occasion  as  just  and  humane.  I  have  no  disposition  to  continue  the  discussion  of 
this  point  of  a  controversy  already  sufficiently  extended,  but  the  indefensible  na- 
ture of  the  transaction,  not  less  than  justice  to  Mr.  Clay,  requires  that  I  should 
make  known  to  you  the  disapprobation  of  this  government  of  an  act  of  cruelty 
towards  a  number  of  its  unprotected  citizens,  committed  by  the  Peruvian  officer, 
without  any  excuse  under  the  circumstances.  The  crews  of  the  vessels  were  in  a 
state  of  utter  destitution,  reduced  to  that  condition  by  forcible  expulsion  from  their 
own  vessels,  and  were  compelled  to  leave  in  open  boats,  badly  equipped  for  the 
purpose,  and  without  provisions  or  water,  and  some  forty  or  fifty  miles,  as  Mr. 
Clay  states,  from  any  place  where  these  indispensable  articles  could  be  procured. 
I  am  sure  the  enlightened  Government  of  Peru  would  condemn  the  conduct  of  the 
captain  of  the  Tumbes  were  all  the  facts  of  the  case  correctly  before  it.  In  a  de- 
clared war,  persons  thus  captured  in  the  prosecution  of  hostilities  would  rarely  be 
subjected  to  such  treatment,  and  never  without  the  serious  responsibility  of  the 
government  permitting  or  justifying  the  measure.  But  these  unfortunate  men  were 
the  citizens  of  a  friendly  republic,  engaged  in  peaceable  commerce,  and  had  done 
no  act  justly  exposing  them  to  capture  or  to  punishment.  The  United  States  have 
a  right  to  expect  the  Government  of  Peru  will  mark  with  its  displeasure  the  con- 
duct of  its  officer  upon  that  occasion. 

I  have  requested  from  the  Attorney-General  his  opinion  upon  some  of  the  ques- 
tions involved  in  the  discussion  between  our  respective  governments,  and  I  enclose 
for  your  information,  a  copy  of  the  communication  I  have  received  from  that  officer 
in  answer  to  my  application.  His  views  meet  the  concurrence  of  the  President. 

I  avail  myself  of  this  occasion,  sir,  to  offer  to  you  a  renewed  assurance  of  my 
very  distinguished  consideration. 

LEWIS  CASS. 


MR.  BLACK  to  MR.  CASS. 

ATTORNEY-GENERAL'S  OFFICE,  \ 
May  15th,  1858.      \ 

Sir, — The  questions  you  have  submitted  relative  to  the  seizure  of  the  American 
vessels  Georgiana  and  Lizzie  Thompson  by  the  Peruvian  war-steamer  Tumbes,  on 
the  coast  of  that  country,  have  had  my  consideration. 

The  two  American  vessels  were  engaged  in  lawful  trade  without  any  intention 
on  the  part  of  masters,  owners,  or  other  persons,  to  do  injury  to  the  Peruvian  Gov- 
ernment, or  to  violate  any  law  which  they  might  find  to  be  in  force  for  the  regula- 
tion of  commerce  in  that  part  of  the  world.  They  both  went  into  the  port  of 
Iquique,  and  there,  after  discharging  the  cargoes  with  which  they  were  laden,  they 
procured  a  regular  clearance  and  license  at  the  Custoin-House  to  load  with  guano 
at  certain  points  on  the  coast  where  that  article  is  found.  While  they  were  en- 
gaged in  taking  in  their  cargoes  of  guano,  agreeably  to  the  license  so  obtained,  they 
were  forcibly  seized  by  the  Peruvian  steamer,  the  persons  on  board  were  impris- 


oned,  and  the  vessels  carried  into  Callao,  under  a  charge  of  being  engaged  in  con- 
traband trade. 

Neither  the  commander  of  the  Turribes  nor  the  government  which  he  served  has 
attempted  to  vindicate  the  justice  or  legality  of  these  proceedings  on  the  ground 
that  the  clearance  and  license  under  which  the  Americans  acted  were  unlawful  in 
form  or  substance.  It  is  not  pretended  that  the  authority  given  on  the  face  of  the 
license  was  insufficient  to  cover  the  acts  of  the  persons  who  had  it.  The  whole 
objection  to  the  papers  is  founded  on  the  fact  that  the  acting  governor  of  Iquique 
and  the  collector,  who  was  in  possession  of  the  Custom-House,  held  their  offices, 
not  under  the  authority  of  the  Supreme  Government  of  Peru,  but  by  appointment 
from  Vivanco,  a  revolutionary  chief,  who  had  taken  arms  against  it.  But  at  the 
date  of  the  license,  this  so-called  revolutionary  party  had  full  possession  of  this 
port  of  Iquique,  of  the  guano  deposits,  and  of  the  whole  country  southward  to  the 
Bolivian  line.  When  the  Americans  went  there  they  found  a  government  organized, 
and  its  officers  performing  the  functions  which  pertained  to  the  execution  of  the 
local  laws.  If  there  was  any  other  power  in  existence  strong  enough  to  dictate 
the  law  at  Iquique,  it  Avas  not  exercised,  nor  did  the  foreigners  at  Iquique  receive 
even  a  notice  that  it  would  ever  be  exercised  in  the  future.  Under  these  circum- 
stances, could  the  Peruvian  Government  justly  or  lawfully  treat  the  American 
vessels  as  violators  of  their  law  ? 

When  a  portion  of  the  territory  of  one  nation  is  taken  possession  of  by  the  forces  of 
another  with  which  it  is  at  war,  the  conquering  party  has  an  undoubted  right  to  declare 
the  law  of  the  place  as  long  as  his  occupation  of  it  continues,  and  all  the  rights  of  the 
previous  sovereign  are  suspended  until  his  possession  is  resumed.  The  island  of  Santa 
Cruz,  then  recently  captured  by  the  British  forces,  was  in  their  temporary  occupation 
during  our  last  war  with  that  country.  We  held  it  to  be  a  colony  of  our  enemy,  and  for 
that  reason  our  courts  declared  that  a  cargo  of  sugar  shipped  from  there  was  the  lawful 
prize  of  an  American  privateer  who  had  captured  it.  (9  Crancb,  191.)  We  conceded  the 
same  rule  when  it  operated  against  us.  The  port  of  Castine  was  taken  by  the  British  in 
1814,  and  it  was  decided  that  our  revenue  laws  did  not  apply  to  it  any  more  than  to  a 
foreign  country.  (4  Wheat.,  246  ;  Gullison's  Rep.,  501.)  Indeed,  nothing  can  be  clearer 
than  that  the  conquest  of  a  country,  or  portion  of  a  country,  by  a  public  enemy,  entitles 
such  enemy  to  the  sovereignty  and  gives  him  civil  dominion  as  long  as  he  retains  his 
military  possession.  The  inhabitants  who  remain  and  submit,  and  strangers  who  go 
there  during  the  occupation  of  the  enemy,  must  take  the  law  from  him  as  the  ruler  de 
facto,  and  not  from  the  government  de  jure,  which  has  been  expelled.  It  is  equally  well 
settled  that,  when  the  former  government  resumes  its  possession  of  the  territory, 
whether  by  force  or  under  a  treaty,  it  cannot  call  the  citizens  or  subjects  of  a  third  na- 
tion to  account  for  obeying  the  authority  which  was  temporarily  supreme,  during  the 
enemy's  occupation  of  the  place.  The  JIM  post  liminii  has  no  sort  of  application  to  such 
a  case. 

It  may  be  supposed  that  these  principles  refer  only  to  a  lawful  war  carried  on  be- 
tween two  separate  and  independent  nations.  But  we  shall  see,  I  think,  upon  further 
examination,  that  they  apply  with  equal  force  to  a  conflict  like  that  in  which  Peru  has 
been  engaged. 

When  the  people  of  a  republic  are  divided  into  two  hostile  parties,  who  take  up  arms 
and  oppose  one  another  by  military  force,  this  is  civil  war.  The  fact  that  civil  war  ex- 
ists does  not  depend  in  the  least  on  the  cause  of  the  dispute.  No  foreign  nation  has  a 
right  to  interfere  between  the  parties,  nor  to  judge  the  merits  of  the  quarrel,  unless  with 
the  purpose  of  making  war  upon  one  or  the  other.  They  have  appealed  to  the  sword, 
and  the  sword  must  decide  it;  other  powers  are  bound  to  observe  a  strict  and  impartial 
neutrality.  If  the  party  which  opposes  the  previously  established  government  shall 


80 


succeed  in  overthrowing  it  entirely,  and  gets  possession  of  the  whole  country,  nobody 
can  be  perverse  enough  to  deny  that  in  such  a  case  the  new  government  is  sovereign  and 
authorized  to  dictate  the  law  which  shall  prevail.  Supposing,  however,  that  the  rebellion 
is  but  partially  successful,  and  the  old  government  maintains  itself  in  one  part  of  its  ter- 
ritory, whilst  it  is  obliged  to  surrender  another,  shall  it  then  give  law  where  it  has  no 
power  to  enforce  obedience,  or  shall  its  authority  be  confined  to  the  territory  which  it  oc- 
cupies ?  The  answer  to  this  question  is  not  doubtful;  a  revolutionary  party,  like  a 
foreign  belligerent  power,  is  supreme  over  the  country  it  conquers,  as  far  and  as  long  as 
its  arms  can  carry  and  maintain  it. 

Wattel  (Book  iii.  ch.  18,  sec.  295)  says,  what  all  writers  on  the  subject  assent  to,  that 
the  parties  to  a  civil  war  are  to  be  regarded,  for  the  time,  as  two  distinct  political 
societies,  and  stand  in  the  same  predicament  as  two  belligerent  nations.  They  are  enti- 
tled, one  as  much  as  the  other,  to  the  respect  of  foreigners  who  deal  with  them,  or  meet 
them  on  sea  or  land.  They  can  each  of  them  claim  the  same  rights  of  asylum,  hospi- 
tality, and  intercourse  with  other  nations.  (3  Wheaton,  643.)  The  captures  made  by 
both  give  titles  to  the  prizes  which  their  respective  ships  lawfully  commissioned  may 
take.  (7  Wheaton,  337.)  Each  of  them  is  deemed  by  us  to  be  a  belligerent  nation, 
having,  so  far  as  concerns  us,  the  sovereign  rights  of  war,  and  entitled  to  be  respected  in 
the  exercise  of  those  rights.  (Ib )  T\  hese  rules  of  public  law  are  recognized  and  enforced 
by  our  neutrality  laws  and  those  of  England.  It  is  a  crime  for  our  citizens  to  take  part 
on  either  side  of  a  civil  war,  as  much  as  it  is  to  aid  one  nation  in  fighting  another.  All 
the  nations  of  the  earth  have  acknowledged  this  doctrine.  It  was  never  denied  during 
our  revolutionary  war  with  Great  Britain,  nor  during  the  civil  contest  between  Spain 
and  her  American  colonies.  The  Peruvian  Government  itself  sprang  from  a  revolution, 
and  while  that  revolution  was  in  progress  its  chiefs  and  people  would  not  have  listened 
for  a  moment  to  any  proposition  which  would  give  their  military  operations  less  validity 
or  respect  than  those  of  other  nations,  however  legitimately  constituted. 

The  existence  of  civil  war  in  Peru  is  admitted  by  the  present  government  of  that 
country.  The  fact  is  known  to  the  whole  world,  and  cannot  be  denied.  The  American 
vessels  did  nothing  to  compromise  their  own  neutrality,  or  that  of  the  flag  under  which 
they  sailed.  Keeping  themselves  within  the  limits  of  a  trade  lawful  and  fair  in  its 
character,  they  had  a  right  to  be  protected  when  they  obeyed  the  regulations  which  they 
found  established  and  in  force  at  the  place.  To  give  them  this  right,  it  was  not  necessary 
that  the  government  of  their  own  country  should  have  previously  known  and  recog- 
nized the  existence  of  the  civil  war.  I  am  not  required,  for  any  purpose  of  this  case,  to 
say  how  far  a  revolutionary  party  can  carry  on  a  war  upon  the  ocean,  and  vex  the  com- 
merce of  the  world  upon  its  common  highway.  It  has  been  doubted  whether  a  mere 
body  of  rebellious  men  can  thrust  itself  among  the  family  of  nations,  and  claim  all  the 
rights  of  a  separate  power  on  the  high  seas,  without  some  sort  of  recognition  from 
foreign  governments.  But  there  is  no  authority  even  for  a  doubt  about  the  right  of  the 
parties  to  a  civil  war  to  conduct  it  with  all  the  incidents  of  lawful  war,  within  the  terri- 
tory to  which  they  both  belong. 

On  the  whole  case,  then,  my  opinion  is,  that  the  following  propositions  cannot  be  con- 
troverted with  any  show  of  reason  or  authority  : 

1.  At  the  time  when  the  Georgian®  and  Lizzie  Thompson  went  to  Iquique,  a  state  of 
civil  war  existed  in  Peru. 

2.  At  that  time,  one  of  the  parties  to  that  civil  war  having  expelled  the  other,  had 
possession  by  conquest  of  the  port  of  Iquique,  and  the  points  where  the  guano  was 
deposited. 

3.  Being  so  in  possession,  and  having  officered  and  organized  the  local  government  of 
the  port,  and  the  city,  and  the  guano  deposits,  the  jurisdiction  of  the  party  headed  by 
Vivanco  was  perfect,  and  an  American  vessel  trading  to  the  port  was  bound  to  conform 
to  its  decrees. 


81 

4.  The   Gtorgiana  and  Lizzie  TJiompson,  having  obeyed  the  laws  of  the  place  then 
established,  and  having  acted  in  pursuance  of  licenses  given  by  the  officers  in  authority, 
were  guilty  of  nothing  for  which  the  other  party  to  the  civil  war  could  punish  or  molest 

them  afterwards. 

5.  The  laws  and  jurisdiction  of  the  Peruvian  Government  were  suspended  at  Iquique 
during  the  time  that  place  was  in  possession  of  its  domestic  enemy,  and  its  resumption 
of  possession  gave  it  no  power  to  punish  American  citizens  for  a  supposed  violation  of 
its  laws  while  they  were  suspended;  nor  to  make  any  new  law  which  would  have  a 
retroactive  effect. 

6.  The  whole  proceeding  of  the  Peruvian  Government  against  the  two  vessels  named 
was  contrary  to  the  law  of  nations,  and  repugnant  to  the  principles  of  natural  justice. 

I  am,  very  respectfully,  yours,  Ac., 

J.  S.  BLACK. 
Hon.  LEWIS  CASS, 

Secretary  of  State. 


(Translated  from  the  Spanish.) 

LEGATION  OF  THE  UNITED  STATES,  ) 
LIMA,  6th  July,  1858.          ) 

The  Exmo  Council  of  Ministers  in  charge  of  the  executive  power  of  Peru,  having 
appealed  to  the  Unite1  d  States  of  America,  through  tlie  Minister  Resident  of  the  republic 
at  Washington,  against  the  protest  and  the  claim  for  indemnity,  which  the  undersigned 
made  in  his  note  addressed  to  H.  E.  the  Minister  of  Foreign  Affairs,  under  date  of  the 
9th  of  February  last,  in  favor  of  the  owners,  captains,  and  crews  of  the  American  ves- 
sels Lizzie  Thompson  and  Georgian  a,  seized  by  the  war  steamer  'lumbes  while  loading  at 
Pabellon  de  Pica  and  Punta  de  Lobos  on  the  24th  of  January  of  this  year;  the  founda- 
tion for  said  protest  and  demand  for  indemnity,  being  that  said  vessels  were,  at  the  time 
of  their  seizure,  engaged  in  a  legal  commerce,  and  consequently  were  not  subject  to 
capture  and  condemnation,  or  their  captains  and  crews  to  punishment;  and  the  Govern- 
ment of  the  United  States  having  fully  sustained  said  protest  and  "demand  for  indem.- 
•nity,"  the  undersigned,  Envoy  Extraordinary  and  Minister  Plenipotentiary  of  the  United 
States  of  America,  has  the  honor  to  transmit  herewith  to  H.  E.  the  Minister  of  Foreign 
Affairs  of  the  Republic  of  Peru,  the  original  letters  addressed  to  the  undersigned  on  the 
second  instant,  by  Horatio  Alden  Wilson,  master  of  the  ship  Lizzie  Thompson,  and 
Stephen  Reynolds,  master  of  the  bark  Georgiana,  accompanied  by  a  statement  which 
sets  forth  the  amount  claimed  by  them  as  indemnity  for  the  losses  and  damages  suffered 
by  the  masters,  owners,  officers,  and  crews  of  said  vessels,  in  c  nsequence  of  their  seizure 
by  the  Tumbes ;  also  the  inventories  of  the  Lizzie  Thompson  and  the  Georgiana,  with 
other  documents  in  support  of  said  demands. 

H.  E.  the  Minister  of  Foreign  Affairs  will  observe  by  the  enclosed  documents  that  Cap 
tain  Wilson  claims  in  his  name,  and  for  the  other  parties  interested  in  the  Lizzie  Thomp 
son,  the  sum  of  $109,863  82,  and  Captain  Reynolds  in  his  own  name  and  for  the  other 
parties  likewise  interested  in  the  Qeorgiana,  the  sum  of  $46,850  83. 

Demands  which  the  undersigned  has  the  honor  to  submit  to  the  Government  of  Peru 
begging  H.  E.  the  Minister  of  Foreign  Affairs  to  take  the  necessary  measures  for  their 
early  conclusion. 

The  undersigned  avails  himself  of  this  occasion  to  renew  to  H.  E.  the  assurance  of 
his  highest  consideration. 

(Signed)  J.  RANDOLPH  CLAY. 

To  H.  E.  DR.  MANUEL  ORTIZ  DE  ZEVALLOS, 

Minister  of  Foreign  Affairs,  etc.,  &c. 
11 


DEPARTMENT  OF  FOREIGN  AFFAIRS,  ) 
LIMA,  July  llth,  1858.          j" 

I  have  had  the  honor  to  receive  the  dispatch  of  your  Excellency  of  the  6th  instant, 
with  the  documents  therein  referred  to,  in  which  your  Excellency  makes  a  demand  for 
indemnity  for  the  capture  of  the  American  vessels  Lizzie  Thompson  and  Georyiana,  in 
view  of  the  fact  that  the  Government  of  the  United  States  have  fully  sustained  the  pro- 
test which,  in  regard  to  the  same  matter,  your  Excellency  \vas  pleased  to  direct  to  this 
Department  on  the  9th  of  February  last. 

By  the  tenor  of  the  response  which  the  Hon.  Secretary  of  State  made  on  the  26th  of 
May  last  to  the  note  which  the  Minister  Resident  of  this  republic,  Don  Juan  Ignacio  de 
Osma,  addressed  to  him  on  the  27th  of  the  previous  March,  an  authentic  copy  of  which 
has  been  transmitted  to  me,  it  simply  appears;  that  His  Excellency,  alluding  to  the 
opinion  given  by  the  Attorney  General,  after  expressing  the  view  which  the  enlightened 
Cabinet  of  Washington  had  taken  in  regard  to  the  legal  question,  H.  E.  concludes  with 
an  expression  of  the  hope  entertained  by  the  President  of  the  Union  that  the  Govern- 
ment of  Peru,  reconsidering  the  circumstances,  would  not  hesitate  to  authorize  adequate 
compensation  for  the  capture  of  the  aforesaid  vessels.  But  as  there  were  well  founded 
reasons  to  give  a  satisfactory  reply  to  so  important  a  communication,  Mr.  Osma,  in  due 
season,  gave  it  in  proper  form,  having,  moreover,  received  ulterior  instructions  from  my 
government  to  conclude  the  pending  negotiation. 

In  this  view  the  Council  of  Ministers,  in  charge  of  the  executive  power,  have  directed 
me  to  state  to  your  Excellency,  that  they  cannot  take  into  consideration  the  demand 
which  your  Excellency  has  deemed  it  convenient  to  institute;  both  because  in  the  present 
state  of  the  question,  it  is  evidently  premature,  and  because  said  question  being  under 
discussion,  by  agreement,  directly  with  the  Government  of  the  Union,  it  would  become 
distorted,  inconvenient,  and  complicated  if  discussed  at  the  same  time  with  your  Excel- 
lency in  this  capital. 

I  avail  myself  of  this  occasion  to  renew  to  your  Excellency  the  assurance  of  the  par- 
ticular regard  and  distinguished  consideration,  with  which 

I  remain  your  Excellency's  obedient  servant, 

MANUEL  ORTIZ  DE  ZEVALLOS, 
To  H.  E.  the  Envoy  Extraordinary  and  Minister  Plenipotentiary  of  the  U.  S, 


Record  of  the  sentence  pronounced  in  the  first  instance  against  Captain  Stephen  Rey. 
nolds  of  the  Georgiana,  in  the  trial  for  seizure  now  in  course, 

CALLAO,  May  6th,  1858. 

It  appears,  1st.  That,  under  date  of  the  28th  of  December  of  last  year,  the  North 
American  vessel  Georgiana  was  dispatched  from  Iquique  for  foreign  parts,  according 
to  the  document  at  page  10  :  2d.  That,  six  days  before,  that  is,  on  the  22d  of  the  same 
month,  the  Captain  Stephen  Reynolds  made  and  concluded  a  charter-party  with  Don 
Jose  Santos  Osa,  for  himself  and  in  the  name  of  Lequeleque  &  Bordes  of  Valparaiso  to 
load  in  his  vessel  all  the  guano  which  she  could  take  from  the  national  deposits  at  the 
south  of  Iquique,  and  transport  the  same  to  the  port  of  Cork,  in  Ireland,  in  virtue  of  the 
stipulations  of  said  contract,  and  the  license  or  permission  given  by  Don  Felipe  Riva?, 
arrogating  to  himself  the  title  of  General  and  Commander-in-Chief  of  the  Navy,  as  appears 
by  the  original  documents  on  pages  11  and  13  :  3d.  That  in  consequence  thereof,  and  in 
conformity  with  the  orders  of  the  charterer,  said  captain  sailed  for  the  Punta  de  Lobo?, 
where  after  having  anchored,  he  commenced  loading  his  vessel  with  the  guano  which 
was  then  ready,  and  the  number  of  tons  of  which  amounted  to  130,  more  or  less,  as  he 
states  in  his  declaration  at  page  17.  And  in  view  of  the  fact  that  by  articles  15  and  17 


S3 


of  the  Supreme  Decree  of  March  21st  1852,  arts.  1st,  3d,  and  4th,  of  the  10th  of  May 
of  the  same  year,  article  1st  of  the  5th  of  January  1857,  the  law  of  March  31st  of  the 
same  year,  and  article  213  of  the  Regulation  of  Commerce,  all  national  or  foreign  vessels 
are  ab-olutely  prohibited  from  entering  or  anchoring  in  ports  not  open,  much  less  in 
those  in  which  there  might  be  guano,  and  with  the  intent  to  export  it.  And  that  by  the 
aforesaid  Supreme  Decrees  it  is  only  permitted  that  guano  should  be  embarked  for 
foreign  parts,  at  the  Chincha  Islands,  and  this  exclusively  by  the  consignees  of  the  State, 
with  the  legal  requisites  and  license  of  the  Supreme  National  Government,  the  only 
authority  which  can  grant  it.  And  finally,  that  said  captain  could  not  plead  ignorance, 
when  anchoring  at  Iquique,  of  what  he  was  or  was  not  permitted  to  do,  in  observance  of 
the  fiscal  laws  of  the  Republic,  and  that  it  is  clearly  proved  that  the  Captain  of  the  North 
American  vessel  Georgiana  not  only  entered  and  anchored  in  Punta  de  Lobos,  but  that 
he  also  loaded  guano,  the  property  of  the  State,  infringing  all  the  fiscal  laws  of  the  Re- 
public, by  which  it  is  prohibited,  and  thereby  making  himself  liable  to  the  penalties  set 
forth  in  them.  On  these  grounds,  and  in  conformity  with  the  petition  of  the  Contadaria 
(Comptroller),  we  decree,  in  judgment  of  first  instance,  that  we  should,  and  do  condemn 
to  the  penalty  of  confiscation,  in  conformity  with  the  laws  and  Supreme  Decrees  already 
cited,  the  aforesaid  North  American  vessel  Georgiana,  with  all  her  appurtenances,  apply- 
ing her  value  to  the  Commander  of  the  National  war-steamer  Tumbes,  Don  Ignacio 
Dueflas,  and  other  captors,  in  the  mode  and  form  prescribed  in  article  298  of  the  Regu- 
lation of  Commerce ;  excepting  the  guano  now  on  board,  as  it  belongs  to  the  State.  Let 

it  be  known. 

PEDRO  SALMON. 

Senor  Don  Pedro  Salmon,  Collector  of  this  Custom-House,  and  Judge  of  Confiscations 
of  this  Province,  while  holding  open  Court,  gave  and  pronounced  the  aforesaid  sentence, 
on  the  day  of  its  date,  which  I  hereby  certify. 

PEDRO  CUBILLAS. 

The  foregoing  conforms  with  the  original  sentence,  to  which  I  refer  in  case  of  ne- 
cessity, and  in  virtue  of  my  orders. 

I  give  the  present  in  Callao,  May  21st,  1858. 

PKDRO  DE  CUBILLAS. 


Record  of  the  sentence  pronounced  in  the  first  instance  ngainst  Captain  H.  A.  Wilson 
of  the  Lizzie  Thompson,  in  the  trial  for  seizure  now  in  course. 

CALLAO,  May  6lh,  1858. 

It  appears,  first:  that  Don  H.  A.  Wilson,  Captain  of  the  American  ship  Lizzie  Thomp- 
son, celebrated  a  charter-party  with  Don  FedericoFreraut,  to  load  in  his  vessel  all  the 
guano  which  she  could  hold,  and 'transport  it  to  the  port  of  Cork,  in  Ireland ;  as  appears 
by  the  original  document,  ou  page  1. 

2<1.  That  with  that  object  she  sailed  from  the  port  of  Iquique,  destined  for  Pabellon  de 
Pica,  where  she  was  captured  by  the  war-steamer  Tumbes,  having  already  embark*  d  more 
than  200  tons  of  guano,  part  of  that  which  she  was  bound  to  receive  on  board  by  virtue  of 
the  stipulations  in  said  contract,  and  the  permit  or  license  issued  by  Don  Fel.pe  R  vas,  ar- 
ro^ating  to  himself  the  title  of  General  and  Comrnander-in-Chief  of  the  Navy,  as  is  proved 
on  pao-es  ,  and  declaration  of  pages  .  And  considering,  that  in  accordance  with  ar- 
ticles 15  and  16  of  the  Supreme  regulannentary  Decree  of  the  21st  of  March,  1852  ;  arti- 
cles first,  third,  and  fourth  of  that  of.  the  10th  of  May  of  the  same  year;  article  first 


of  5th  of  January  1857  ;  the  law  of  the  31st  of  March  of  the  same  year;  and  article 
213  of  the  Regulation  of  Commerce,  all  national  or  foreign  vessels  are  absolutely  pro- 
hibited, under  penalty  of  confiscation,  from  entering  or  anchoring  in  ports  which  are 
not  open,  and  much  less  in  those  in  which  there  may  be  guanov:  that  by  said  Supreme 
Decrees,  the  exportation  of  guano  for  foreign  parts  is  only  permitted  from  the  Chincha 
Islands,  and  this  only  by  the  consignees  of  the  State,  undtT  the  legal  requisites  and 
license  of  the  Supreme  National  Government,  the  only  authority  competent  to  grant  it, 
of  which  circumstance  the  Captain  of  that  vessel  could  not  have  been  ignorant,  since,  so 
soon  as  he  anchored  in  Iquique,  he  was  obliged  to  know  what  he  was  or  was  not  per- 
mitted to  do,  in  strict  observance  of  the  Regulations  and  fiscal  laws  of  the  Republic;  and 
finally,  that  it  is  proved  that  the  aforesaid  captain  not  only  entered  and  anchored  at  Pa- 
bellon  de  Pica,  but  that  he  embarked  in  his  vessel  guano  belonging  to  the  nation,  infring- 
ing all  the  fiscal  laws  which  prohibit  it  :  for  these  reasons,  agreeing  with  the  Contaduria, 
we  decree,  in  judgment  of  first  instance,  that  the  North  American  ship  Lizzie  TJiomp- 
son  merits  confiscation,  in  conformity  with  the  provisions  of  the  Supreme  Decrees, 
and  laws  already  cited,  applying  her  value  to  the  Commander  of  the  National  war- 
steamer  Tumbes,  Don  Ignacio  Duenas,  and  other  captors,  in  the  mode  and  form  pre- 
scribed in  article  298  of  the  Regulation  of  Commerce,  excepting  the  guano  existing  on 
board,  which  belongs  to  the  State.  Let  it  be  known. 

PEDRO  SALMOX. 

The  Collector  of  the  Custom-House,  and  Judge  of  Confiscations,  gave  and  pronounced 
the  above  sentence  while  exercising  jurisdiction,  and  holding  open  Court,  on  the  day  of 
its  date,  the  employees  of  the  office  being  witnesses. 

PEDRO  DE  CUBILLAS, 

Notary  of  Customs. 

The  foregoing  conforms  with  the  original  sentence,  to  which  I  refer  in  case  of  necessity, 
and  in  virtue  of  my  orders. 
I  give  the  present  in  Callao,  May  26th,  1858. 

PEDRO  DE  CUBILLAS, 

Notary  of  Customs. 


(Translation.1) 

NEW  YORK,  August  4th,  1858. 

The  undersigned,  Minister  Resident  of  Peru,  has  had  the  honor  to  receive  the  commu* 
nication  of  the  Hon.  Secretary  of  State  of  the  United  States  bearing  date  the  22d  of 
May  last,  with  its  accompanying  documents,  and  is  gratified  at  having  contributed  to 
convince  the  Hon.  Secretary  of  the  absence  of  all  grounds  for  the  peremptory  reclam- 
ation pressed  by  the  Minister  of  the  United  States  in  Lima,  on  account  of  the  affair  of 
the  American  bark  Dorcan  O.  Yeaton.  The  satisfactory  result  of  the  Hon.  Secretary's 
investigations  in  that  regard,  happily  relieves  the  undersigned  from  the  necessity  which 
he  might  otherwise  have  been  under,  to  dissent  from  various  comments  upon  the  facts, 
and  several  of  the  views  of  public  law,  with  which  the  Hon.  Secretary  was  pleased  to 
accompany  his  conclusions.  So  far  therefore  as  concerns  the  case  alluded  to,  the  under- 
signed confines  himself  to  an  expression  of  the  satisfaction  with  which  the  Government 
has  welcomed  the  termination  of  so  leading  a  portion  of  the  controversy  set  on  foot  by 
the  Minister  of  the  United  States  in  Peru. 

Before  proceeding  with  further  reply  to  the  communication  of  the  Hon,  Secretary  of 
State,  the  undersigned  asks  leave  to  rectify  one  among  the  errors  committed  in  the 
translation  of  his  note  of  the  27th  of  March.  The  undersigned  said  therein,  "that  the 


85 


Hon.  Mr.  Cass  had  stated  to  him  that  there  were  cases  in  which  a  vessel  of  war  might  be 
excused  for  visiting  merchantmen  on  the  high  seas,  and  that  the  Government  of  the 
United  States  in  such  cases  would  make  no  formal  reclamation,  &c"  The  phrase 
"might  be  excused"  was  rendered  "might  be  justified"  and  the  undersigned  was 
placed,  by  so  grave  a  misinterpretation,  in  the  position  of  saying,  what,  in  view  of  the 
principles  maintained  for  fifty  years  by  this  Government,  in  respect  to  the  right  of  visit- 
ation on  the  high  seas  in  time  of  peace,  and  indeed  what  in  view  of  the  language  of  the 
Hon.  Secretary  himself  in  the  interview  referred  to,  it  was  out  of  the  question  that  the 
undersigned  could  have  asserted. 

The  undersigned  observes,  with  profound  regret,  that  he  has  not  been  able,  as  he  had 
confidently  hoped,  to  secure  the  assent  of  the  Cabinet  of  Washington,  to  that  solution  of 
the  remaining  question,  in  regard  to  the  American  vessels  Georgi.ana  and  Lizzie  Thompson, 
which  to  his  Government  and  himself  has  seemed  just  and  in  conformity  with  the  estab- 
lished principles  of  the  law  of  nations.  He  is  nevertheless  gratified  to  observe  that  the 
Government  of  the  United  States,  confiding  in  the  friendship  and  loyalty  of  the  Govern- 
ment of  Pern,  has  abstained  from  elevating  the  matter  to  the  level  of  an  international 
dispute,  allowing  it  rather  to  remain  as  a  simple  reclamation  for  damages — the  position 
which  it  naturally  and  properly  occupies.  Regarding  it  in  this  last  point  of  view,  and, 
indeed,  in  every  other,  the  undersigned  still  entertains  the  hope  that  it  will  be  in  his 
power  to  satisfy  the  Government  of  the  United  Stales,  of  the  legitimacy  of  the  proceed- 
ings of  the  Peruvian  Government  in  the  premises,  and  the  total  invalidity  of  the  claims 
which  are  sought  to  be  founded  thereupon  by  the  parties  interested.  While  repre- 
senting, in  this,  the  views,  and  obeying  the  instructions  of  his  Government,  the  under- 
signed does  not  fail  to  recognize  the  characteristic  ability  with  which  the  Hon.  Secretary 
of  State,  sustaining  himself  by  the  opinion  of  the  Hon.  Attorney-General,  has  maintained 
the  adverse  view  of  the  question.  But  the  undersigned,  at  the  same  time,  has  not  been 
able  to  avoid  perceiving,  in  the  written  argument  of  the  eminent  jurisconsult  referred  to, 
what  seems  to  the  undersigned  a  signal  departure  from  the  principles  laid  down,  in 
similar  cases,  by  the  authorities  generally  approved,  and  he  therefore  feels  it  is  his 
duty  frankly  to  state  the  reasons  which  justify  his  dissent  from  the  conclusions  therein 
asserted. 

Without  entering  into  minor  details,  the  undersigned  believes  that  the  respective 
arguments  of  the  Honorable  Secretary  of  State  and  Attorney-General  may  be  reduced  to 
the  support  of  the  following  propositions: 

1.  That  at  the  time  of  the  seizure  of  the  vessels  referred   to,  a  civil  war  existed  in 
Peru,  and  that  one  of  the  belligerent  parties  having  possessed  itself  of  the   port  of 
Tquique  and  the  gunno  deposits  in   Punta  de  Lobos  and  Pabelion  de  Pica,  had  estab- 
lished nnd  maintained  at  those  poin's  n  government  defaclo. 

2.  That  the  vessels  in  question,  having  sailed  to  Iquique,  in  the  prosecution  of  a  lawful 
trade  and  under  the  guaranties  of  the  existing  treaties  between  the  two  nations,  were 
under  an  obligation  to  conform  to  the  regulations  which  they  found  established  there,  by 
the  existing  authorities,  without  responsibility  to  the  Lima  Government  for  the  conse- 
quences of  such  conformity. 

8.  That  the  captains  of  the  said  vessels  were  not  only  under  an  obligation  to  obey  the 
constituted  authorities  de  facto  in  Jquique,  but  had,  at  the  same  time,  the  perfect  right 
to  avail  themselves  of  the  licenses  which  were  issued  to  them  there,  to  load  guano  at  the 
other  two  points  ;  and  further,  that  under  the  laws  of  nations,  the  said  licenses  afforded 
them  guaranty  and  protection  against  the  seizure  and  confiscation  of  their  vessels  and 
the  punishment  of  those  on  board,  when  the  Lima  Government,  through  the  means  of  the 
national  ship  Turnbes,  was  enabled  subsequently  to  capture  them  in  the  act  of  loading 
guano,  in  open  violation  of  the  laws  referred  to  by  the  undersigned  in  his  communication: 
of  the  27th  of  March. 


86 


Thp  undersigned  does  not  deem  it  important  to  continue  the  discussion  of  the  question, 
whether  the  movement  of  General  Vivanco  had  or  had  not  reached  the  point  of  actually 
establishing  a  civil  war  in  Peru,  at  the  time  when  the  events  occurred  which  are  now  in 
controversy.  Whether  there  was  really  a  civil  war,  or  a  mere  insurrection,  more  or  less 
serious  and  extended,  is  altogether  immaterial,  in  the  opinion  of  the  undersigned,  so  far 
as  the  principles  of  public  law  are  concerned  by  which  the  present  case  is  governed. 
The  doctrine  to  which  the  Government  of  Peru  feels  justified  in  adhering,  and  in  the 
presentation  of  which  the  undersigned  regrets  to  perceive  that  he  hud  not  the  good  for- 
tune to  make  himself  as  clear  to  the  Honorable  Secretary  of  State  as  he  had  desired,  is 
this: 

That  in  order  to  confer  upon  the  individuals  of  friendly  nations,  the  rights  of  neutrals 
between  belligerents,  as  in  case  of  war,  the  mere  existence  of  a  parti;.  1  revolution,  un- 
equivocal as  it  may  be,  does  not  suffice,  nor  the  actual,  forcible  possession,  by  the  revolted 
party,  of  an  integral  portion  of  the  revolutionized  territory.  There  is  an  indispensable 
necessity  for  something  further. 

It  is  necessary  that  the  Government,  in  favor  of  whose  citizens  neutral  rights  are  in  such 
case  invoked,  should  have  recognized,  previously  and  officially,  the  existence  of  what  is 
sought  to  be  treated  as  a  civil  war.  In  the  absence  of  such  official  recognition,  civil  war, 
however  actual  and  existing  it  in  fact  may  be,  does  not  exist  in  law  as  the  basis  of  any 
claim  of  right  whatever,  on  the  part  of  the  citizens  of  such  nations  as  may  have  failed 
to  recognize  it,  and  the  existence  of  such  civil  war  is  therefore  a  question  purely  of 
law,  and  not  of  fact  or  of  proof,  as  the  Honorable  Secretary  of  State  supposes  and 
argues. 

The  Honorable  Attorney-General,  led  on  by  the  force  of  his  personal  convictions,  which 
are  certainly  worthy  of  all  consideration,  has  been  pleased  to  characterize  as  "  perverse'' 
whoever  should  venture  to  deny  the  sovereign  and  legitimate  authority — as  respects 
other  nations  to  their  citizens — of  a  victorious  revolutionary  party,  in  actual  possession 
of  the  whole  revolutionized  country.  The  Supreme  Court  of  the  United  States,  ap- 
proving the  decision  of  the  Lord  Chancellor  of  Great  Britain,  in  the  case  of  the  city  of 
Berne  against  the  Bank  of  England  (9  Veazey,  348),  which  will  be  hereafter  considered, 
appears  to  have  differed  in  opinion  with  the  learned  Attorney-General  upon  this  point, 
and  to  have  held  that  even  in  the  extreme  circumstances  stated,  it  was  indispensable  to 
the  legitimacy  of  the  new  government  that  it  should  have  been  officially  recognized  by 
the  nation  before  whose  tribunals  it  might  seek  the  enforcement  of  any  right.  But  even  if 
this  weie  not  so,  the  undersigned  would  still  be  under  the  necessity  of  questioning  the 
application,  to  the  present  case,  of  the  argument  referred  to,  even  although  by  so  doing 
he  should  expose  his  doubts  to  the  imputation  of  similar  perversity,  The  present  con- 
troversy has  reference  to  a  faction  still  struggling  for  power,  and  not  a  revolution  which 
had  been  consummated.  It  is  the  case  of  a  supposed  civil  war  still  pending  and  in- 
volving the  relations  and  respective  rights  of  belligerents  and  neutrals,  It  raises  no 
question  as  to  a  civil  war  ended,  where  there  are  neither  neutrals  nor  belligerents  any 
longer.  The  portion  therefore  of  the  Attorney-General's  argument  which  has  been 
cited  is  wanting  in  that  analogy  which  alone  could  give  it  force,  and  fails,  in  consequence, 
to  affect  the  principle  asserted  by  the  undersigned,  against  which  it  was  directed. 

Nor  does  the  undersigned  discover  in  the  citations  of  the  Honorable  Attorney  that 
confirmation  of  the  positive  conclusions  arrived  at  in  his  opinion,  which  the  learned  col' 
league  of  the  Honorable  Secretary  of  State  so  emphatically  attributes  to  them.  The 
quotation  from  Vattel  (Book  3,  chap.  18,  sec.  295),  in  which  that  eminent  publicist  asserts 
the  principle,  "that  the  two  parties  to  a  civil  war  are  to  be  regarded  for  the  time  as  dis- 
tinct political  societies,  and  stand  in  the  same  predicament  as  two  belligerent  nations,"  is 
far  from  controverting  in  any  particular  the  doctrine  which  the  undersigned  is  advancing. 
On  the  contrary,  if  the  Honorable  Secretary  will  be  so  good  as  to  examine  the  original, 
he  will  find  that  Vattel  directs  himself  expressly  and  exclusively  to  the  relations  of  the 


87 


belligerent  parties  between  themselves,  -without  touching,  even  remotely,  the  question  of 
their  relations  with  other  nations  or  the  individuals  who  compose  them.  In  the  well- 
known  case  of  the  Sanlisima  Triuidid  (7  Wheaton,  337),  referred  to  by  the  Attorney- 
General  in  the  same  connection,  the  Supreme  Court  of  the  United  States  makes  use,  it  is 
true,  of  the  language  winch  the  Attorney-General  has  copied,  but  it  is  with  the  interpo- 
sition of  a  single  word,  which  appears  to  have  escaped  the  attention  of  that  learned 
(fficer,  though  it  gives  to  the  sentence  quoted  a  directly  opposite  signification  in  its  ap- 
plication  to  the  present  argument.  The  expression  of  the  Honorable  Attorney  is  as  fol- 
lows ;  "  Each  of  them"  (that  is  to  say,  the  two  parties  to  a  civil  war)  "  is  deemed  by  us 
to  be  a  belligerent  nation,  having,  so  far  as  concerns  us,  the  sovereign  rights  of  war,  and 
entitled  to  be  respected  in  the  exercise  of  those  rights.'' 

The  language  of  the  Supreme  Court,  as  it.  appears  in  the  Report,  is  the  following, 
viz.: 

"The  Government  of  the  United  States  has  recognised  the  existence  of  a  civil  war,  be- 
tween Spain  and  her  Colonies,  and  has  avowed  a  determination  to  remain  neutral  between 
the  parties,  and  to  allow  to  each  the  same  rights  of  asylum,  hospitality  and  intercourse. 
Each  party  is  therefore  deemed  by  us  a  belligerent  nation,  having,  so  far  as  concerns  us, 
the  sovereign  rights  of  war,  and  entitled  to  be  respected,  in  the  exercise  of  those 
rights." 

In  view  of  the  application  of  the  omitted,  but  essential,  word  "therefore,"  it  appears 
to  be  matter  of  demonstration  that  the  Supreme  Court  not  only  did  not  desire  to  lay  down 
tho  absolute  doctrine  sought  to  be  attributed  to  i';,  but,  on  the  contrary,  based  the  separate 
and  belligerent  existence  of  the  parties  referred  to,  exclusively  upon  the  previous  recogni- 
tion, by  the  Government  of  the  Union,  of  the  existence  of  a  civil  war  between  them. 

Obvious  and  indisputable  as  this  inference  must  be,  the  undersigned  draws  it  with 
still  greater  confidence,  in  contemplation  of  the  frequent  occasions  of,  which  the  Supreme 
Court  of  the  United  States  has  availed  itself  to  reiterate  and  confirm  the  identical  doc- 
trine. In  the  case  of  Rose  vs.  Himely,  (4  Cranch,  272),  the  high  tribunal  referred  to  ex- 
presses itself  in  the  following  manner  t 

"The  Colony  of  St  Domingo,  originally  belonging  to  France,  had  broken  the  bond 
which  connected  her  with  the  parent  state,  had  declared  herself  independent,  and  was 
endeavoring  to  support  that  independence  by  arms.  France  still  asserted  her  claim  of  sov^ 
ereignty,  and  had  employed  a  military  force  in  support  of  that  claim.  A  war,  de  facto 
then  unquestionably  existed  between  France  and  St.  Domingo.  It  has  been  argued,  that 
the  Colony  having  declared  itself  a  sovereign  state,  and  having  thus  far  maintained  its 
sovereignty  by  arms,  must  be  considered  and  treated  by  other  nations  as  sovereign  in 
fact,  and  as  being  entitled  to  maintain  the  same  intercourse  with  the  woild  that  is  main- 
tained by  other  belligerent  nations.  In  support  of  this  argument,  the  doctrines  of  Vattel 
have  been  particularly  referred  to.  But  the  language  of  that  writer  is  obviously  ad- 
dressed to  Sovereigns,  not  to  Courts.  It  is  for  Governments  to  decide  whether  they  will 
consider  St.  Domingo  as  an  independent  nation,  and  until  such  decision  shall  be  made  or 
France  shall  relinquish  her  claim,  courts  of  justice  must  consider  the  ancient  state  of  things 
as  remaining  unaltered,  and  the  sovereign  power  of  France,  over  that  colony,  as  still  sub- 
sisting." 

In  the  case  of  Gelston  vs.  Hoyt  (3  Wheaton,  324),  the  Supreme  Court  reasserts  the 
same  principle,  in  the  language  following  : 

"No  doctrine  is  better  established  than  that  it  belongs  exclusively  to  Governments  to  re- 
cognize new  States  in  the  revolutions  which  may  occur  in  the  world ;  and  until  such  recog- 
nition, either  by  our  own  Government,  or  the  Government  to  which  the  neio  State  belonged, 
courts  of  justice  are  bound  to  consider  the  ancient  state  of  things  as  remaining  -unaltered. 
This  was  expressly  held  by  this  Court,  in  the  case  of  Rose  vs.  Himely,  and  to  that  decision, 


on  this  point,  we  adhere.  And  the  same  doctrine  is  clearly  sustained  by  the  judgment  of 
foreign  tribunals." 

At  page  634  of  the  same  volume,  in  the  criminal  case  of  Palmer,  the  Supreme  tribunal 
reiterates  the  same  doctrine?.  Latterly,  in  the  year  1852,  the  Honorable  Chief  Justice 
of  the  United  States  pronouncing  the  judgment  of  the  Court,  in  the  case  of  Kennett  vs 
Chambers  (14  Howard,  46),  expresses  himself  in  these  words: 

"  Undoubtedly,  when  Texas  had  achieved  her  independence,  no  previous  treaty  could 
bind  this  country  to  regard  it  as  a  part  of  the  Mexican  territory.  But  it  belonged  to  tho 
Government,  and  not  to  individual  citizens  to  decide  lohen  that  event  had  taken  place."  And 
on  pp.ge  51,  the  Chief  Justice,  confirming  the  decisions  already  cited,  adds: 

"  The  question  whether  Texas  had  or  had  not,  at  that  time  became  an  independent 
state  was  a  question  for  that  department  of  our  Government,  exclusively,  tuliich  in  charged 
with  our  foreign  relations.  And  until  the  period  ichen  that  department  recognized  it  as  an 
independent  state,  the  judicial  tribunals  of  the  country  were  bound  to  consider  the  old  state 
of  things  as  having  continued,  and  to  regard  Texas  as  apart  of  the  Mexican  territory." 

The  high  American  authority,  Mr.  Wheaton,  commenting  upon  some  of  these  decisions 
in  his  elements  of  International  Law  (Part  1,  chap.  2,  sec.  10),  concludes  his  observa- 
tions thus : 

"This  question  must  be  determined  by  the  sovereign  legislative  or  executive  power  of 
the  other  states  arid  not  by  any  subordinate  authority,  or  by  the  private  judgment  of 
their  individual  subjects." 

And  it  is  further  to  be  observed  that  the  principle  so  emphatically  adopted  and  pro- 
mulged  by  the  Supreme  Court  of  the  United  States  does  not  appear,  in  any  way,  to  au- 
thorize the  restriction  supposed  by  the  Honorable  Attorney-General  to  exist,  when  he 
indicates  the  following  as  the  limit  of  the  legitimate  doctrine  upon  the  subject,  viz.  : 

"It  has  been  doubted  whether  a  mere  body  of  rebellious  men  can  thrust  itself  among 
the  family  of  nations  and  claim  all  the  rights  of  a  separate  power,  upon  the  high  seas, 
without  some  sort  of  recognition  from  foreign  governments." 

It  were  barely  impDSsille  to  employ  language  more  remote  from  doubt  upon  the  sub- 
ject, than  that  used  so  repeatedly  by  the  Supreme  Court — and  the  cases  to  which  that 
language  is  applied  are  very  far  from  having  exclusive  reference  to  rights  which  are  to 
be  exercised  on  the  high  seas.  On  the  contrary,  in  the  case  of  Eose  vs.  Himelv,  the  cap- 
ture in  question  was  made  by  a  cruiser  of  the  French  Government  and  not  by  a  vessel  of 
the  rebels:  and  the  principles  laid  down  by  the  Court  had  no  connection  whatever  with 
the  privileges  or  rights  of  the  latter  upon  the  ocean.  The  case  of  Kennett  vs.  Cham- 
bers arose  out  of  a  personal  contract,  having  no  relation  of  any  sort  to  the  maritime 
rights  of  Texas  as  a  revolted  province.  And,  surely,  indeed  it  would  be  strange,  if  an 
official  recognition  by  foreign  governments  were  requisite  to  give  to  "  a  mere  body  of 
rebellious  men"  the  rights  of  belligerents  upon  the  high  seas,  and  were  not  requisite  to 
clothe  the  very  same  rebels  with  the  rights  of  belligerents  on  shore.  It  seems  difficult 
to  comprehend  the  principle  upon  which  such  a  distinction  could  with  any  plausibility  be 
rested. 

Neither  has  the  Supreme  Court,  in  the  judgment  of  the  undersigned,  left  any  room 
for  the  other  distinction  which  the  Honorable  Secretary  of  State  has  united  with  the 
Attorney-General  in  seeking  to  draw:  that  is  to  say  :  that  the  necessity  of  an  official 
recognition,  by  foreign  nations,  exists  only  where  the  independence  of  a  revolted  colony 
or  province  is  in  question,  and  is  not  involved  in  the  simple  case  of  a  domestic  war, 
whose  only  object  is  to  change  the  personnel  of  an  existing  government.  In  the  above- 
mentioned  case  of  Palmer  (p.  635),  the  Supreme  Court  speaks,  in  express  words,  of  the 
recognition  "  of  the  existence  of  a  civil  war,"  and  not  of  the  recognition  of  the  inde- 
pendence of  a  revolutionary  colony.  So,  in  the  case  of  the  Sanlisima  2rinidad,  the  Court 


89 


declares,  with  equal  emphasis,  that  although  the  Government  of  the  United  States  had 
not  recognized  Buenos  Aj'res  "  as  a  sovereign,  independent  government,"  it  had  never- 
theless "  recognized  the  existence  of  a  civil  war,  between  Spain  and  her  colonies,"  which 
latter  sufficed,  and  was  requisite,  to  confer  upon  those  colonies  the  legitimate  character 
of  belligerents.  And  in  order  to  remove  all  doubt  upon  the  point,  and  to  show  that  the 
Supreme  Court  intended  to  apply  the  doctrine  in  controversy  as  well  to  those  internal 
revolutions  which  only  alter  the  form  of  government,  or  contemplate  a  change  in  the 
individual  rulers  of  nations  already  established,  as  to  those  civil  wars  whose  object  is  to 
introduce  a  new  arid  independent  member  into  the  national  family,  it  is  only  necessary 
to  recur  to  the  aforementioned  case  of  the  City  of  Berne  against  the  Bank  of  England 
(9  Veazey,  348),  decided  by  Lord  Elden  in  the  British  Court  of  Chancery,  and  adopted  as 
authority  by  the  Supreme  Court,  in  Gelston  vs.  Hoyt.  The  question  there  arose  upon  a 
claim  set  up,  in  1804,  by  the  new  revolutionary  government  of  Berne,  in  Switzerland,  to 
certain  public  funds  of  that  city  which  had  been  invested  by  the  ante-revolutionary 
authorities  of  the  same.  The  Lord  Chancellor  ruled  against  the  plaintiffs,  assigning  as 
his  only  reason,  that  the  British  Government  had  not  recognized  the  substituted  Govern- 
ment of  Switzerland,  and  the  British  Courts,  therefore,  could  not  admit  the  lawfulness 
of  its  existence,  or  give  to  it  judicial  recognition.  And  if  a  government,  a  ruler,  or  a 
war,  each  or  all  of  thorn,  existing  as  such,  in  fact,  are  yet  incapable  of  a  legal  existence 
before  the  tribunals  of  foreign  nations,  in  the  absence  of  an  official  recognition  by  the 
governments  of  those  nations,  surely  they  must  be  incapable  of  such  legal  existence  a 
fortiori,  as  regards  the  individual  citizens  or  subjects  of  the  same. 

Indeed,  it  is  not  easy  to  perceive  the  plausibility  of  the  distinction  proposed  to  be 
drawn  by  the  Honorable  Secretary,  between  the  necessity,  which  he  admits,  for  the 
recognition  of  the  existence  of  a  civil  war,  where  its  object  is  the  independence  of  a 
colony,  and  the  absence  of  such  necessity,  where  the  civil  war  aims  only  at  a  domestic 
revolution.  The  question  mooted  here,  is  as  to  the  existence  or  non-existence,  in  Peru, 
of  a  civil  war,  in  the  contemplation  of  the  laws  of  nations.  It  is  not  a  question  as  to  the 
origin  of  such  war,  nor  as  to  its  purposes,  but  simply  as  to  its  legal  existence.  And  if, 
when  Peru,  as  a  colony,  was  engaged  in  open,  actual  war  with  the  mother  country,  that 
war  did  not  exist  de  jure,  as  to  the  citizens,  or  before  the  tribunals  of  the  United  States, 
until  the  American  Government  had  first,  officially,  recognized  its  existence  ;  if  after 
Peru  had  conquered,  nnd  actually  attained  her  independence,  that  independence  still 
required  an  official  recognition  from  the  Government  of  this  Union,  before  it  could  exist 
in  contemplation  of  the  laws  of  the  Union,  how  is  it  possible  to  argue,  logically,  now, 
that  the  mere  existence  in  fact  of  a  civil  war  in  the  present  case,  unrecognized  by  this 
government,  can  produce,  of  itself,  and  without  any  recognition  whatever,  the  legal  con- 
sequences of  a  civil  war  de  jure?  Upon  what  principle  is  it,  that  the  recognition  which 
was  indispensable  in  the  first  two  cases,  ceases  to  be  requisite  in  the  third? 

The  doctrine  of  the  Supreme  Court  is  founded  upon  a  principle  which  is  equally 
applicable  to  all  three  of  the  cases,  and  governs  them  alike.  It  is  the  lofty  and  control- 
ing  principle — announced  by  the  Chief  Justice,  in  the  case  of  Kennett  vs.  Chambers — that 
the  management  and  settlement  of  international  questions — tie  serious  and  delicate 
questions  of  peace  and  war — are  the  exclusive  prerogative  of  governments,  and  have  not 
been  confided  even  to  the  tribunals  of  justice — much  less  to  the  caprice,  the  interests, 
or  the  passions  of  private  individuals.  It  is  a  principle  which  is  not  only  allowed  by  way 
of  favor  to  revolutionized  nations,  but  is  insisted  upon  by  other  countries  on  their  own 
behalf,  and  for  their  own  protection.  If  a  civil  war,  without  having  been  recognized  as 
such  by  foreign  nations,  confers,  ipso  facto,  upon  the  parties  thereto  the  obligations  of 
belligerents,  it  must  of  necessity  confer  upon  them,  and  equally  without  such  recogni- 
tion, the  rights  of  belligerents  likewise,  so  that  the  Government  rebelled  against  must, 
from  that  moment,  stand  discharged  from  all  responsibility  for  the  outrages  which  may 
be  perpetrated  by  the  rebels,  within  its  territory,  against  the  citizens  of  other  nations,  or 

12 


90 


their  property.  And  it  is  because  nations  are  not  willing  to  allow  each  other  thus  to  go 
free  at  their  mere  will  and  pleasure  from  their  mutual  obligations  and  responsibilities, 
that  they  have  reserved  the  right  of  determining,  each  for  itself,  whether  a  case  has 
arisen  sufficiently  exceptional  to  modify  the  ordinary  rules,  and  have  refused  to  treat  the 
existence  of  a  civil  war  as  any  ground  of  excuse  or  of  right,  unless  they  themselves,  pur- 
suing the  line  of  policy  which  they  may  judge  convenient,  have  seen  fit  to  recognize  its 
existence,  officially, 'beforehand. 

And  unless  the  undersigned  is  greatly  in  error,  the  Honorable  Secretary  of  State,  him- 
self, wThile  denying  this  principle  in  the  latter  portion  of  his  argument,  makes  what  is 
logically  a  concession  of  its  consequences,  when  he  admits,  with  reference  to  the  Dorcas 
C.  Yeaton,  that  "Peru,  so  far  as  respects  the  effect  of  its  political  condition  upon  its 
intercourse  with  other  powers,  was  in  a  state  of  peace."  It  would  seem  impossible  to 
conceive  the  idea  of  a  nation  in  a  state  of  peace,  so  far  as  regards  its  rights,  and  at  the 
same  moment  in  a  state  of  war  so  far  as  regards  its  obligations  and  the  rights  of  foreign- 
ers. If  peace  existed,  civil  war  could  not  by  possibility  exist.  If,  as  the  Honorable  Sec- 
retary further  states,  "  neither  of  the  parties claimed  any  of  the  rights  of 

a  belligerent  connected  with  that  (foreign)  intercourse,  so  that  the  foreign  relations  of  the 
country  were  undisturbed  by  its  domestic  communications" — "nor,"  as  he  adds,  "were 
foreign  vessels  pronounced  to  be  neutrals  " — how  can  all  this  be  true,  with  reference  to 
the  case  of  the  Dorcas  C.  Yeaton,  and  yet  fail  to  be  equally  true  in  regard  to  that  of  the 
other  two  vessels — when  the  only  difference,  in  this  point  of  view,  between  the  two 
cases  is,  that  the  United  States  asserts  the  facts  in  the  one,  and  Peru  sets  up  the  same 
facts  in  the  other  ? 

If  there  be  any  force  in  what  the  undersigned  has  propounded,  he  might  leave,  with- 
out further  discussion  the  remaining,  subordinate  points  which  have  presented  them- 
selves in  this  controversy.  But  the  gravity  of  the  principal  question  does  not  leave  the 
undersigned  at  liberty  to  be  governed  altogether  by  his  own  convictions.  He  therefore 
proposes  addressing  himself,  briefly,  to  the  two  remaining  propositions,  in  maintaining 
which  the  Honorable  Secretary  and  his  learned  colleague,  the  Attorney-General,  have 
concurred. 

Conceding,  for  the  sake  of  the  argument,  that  the  Georgiana  and  Lizzie  Thompson 
sailed  to  the  port  of  Iquique,  in  the  prosecution  of  a  lawful  commerce,  it  must  needs  be 
granted,  and  the  undersigned  has  no  hesitation  in  admitting,  that  they  were  there,  under 
the  guaranties  of  the  treaty  existing  between  the  United  States  and  Peru.  They  had  the 
perfect  right  to  enter  and  depart,  conforming  themselves  to  the  regulations  which  they 
found  to  exist,  and  obeying  the  established  authorities  de  facto.  But  they  were  not  con- 
tent with  this.  Instead  of  departing,  in  the  further  prosecution  of  the  same  lawful 
trade  which  is  supposed  to  have  led  them  there,  they  allowed  themselves  to  be  se- 
duced in  quite  another  direction.  From  obeying  the  local  de  facto  government,  they 
proceeded  to  do  what  was  a  wholly  different  thing,  namely,  to  contract  with  that  gov- 
ernment, or  under  its  authority,  for  the  spoliation  of  the  national  property.  They  knew 
perfectly  well,  that  the  local  authorities  formed  part  of  a  body  of  rebellious  men,  exercis- 
ing but  a  partial  and  violent  jurisdiction,  maintained  exclusively  by  force  of  arms,  and 
without  any  recognition  whatever,  as  a  government,  by  the  United  States,  or  by  any 
other  nation  whatever.  They  knew,  or  they  were  bound  to  know,  what  were  the  existing 
laws  of  the  republic,  promulgated  notoriously,  over  and  over  again,  by  that  Government 
of  Peru  with  which  exclusively  the  Government  of  the  United  States  held  diplomatic  and 
friendly  relations.  They  were  perfectly  aware  that  the  guano  deposits  formed  the  most 
important  part  of  the  national  property.  They  did  not  hesitate,  nevertheless,  to  precip- 
tate  themselves,  voluntarily  and  with  full  knowledge,  into  a  violation  of  the  laws  re- 
ferred to,  and  thereby  to  incur  the  severe  penalties  which  they  prescribe,  without  any 
other  security  than  that  of  a  license  issued  for  the  occasion  by  a  self-styled  military  au- 
thority of  the  revolutionary  party. 


91 


The  mere  slatementof  these  facts  appears  to  the  undersigned  to  draw  the  obvious  line 
between  the  active  or  passive  obedience  legitimately  due  to  an  existing  local  authority 
and  the  voluntary  acquisition  of  positive  rights  through  the  medium  of  such  authority's 
intervention.  The  right  to  enter  the  port  of  Iquique;  to  be  received  as  citizens  aud  ves- 
sels of  a  friendly  nation  ;  to  be  protected  whilst  they  obi-yed  the  local  and  Custom- 
House  laws,  and  to  depart,  without  further  responsibility,  upon  lawful  voyages — all 
this,  it  must  be  admitted,  was  the  perfect  right  of  the  captains  in  question,  and  their  ves- 
sels. But  it  was  a  peaceful  right,  under  treaty  guaranties.  When,  however,  they  went 
so  far  as  to  take  possession  of  the  public  property,  they  appealed,  at  once,  to  what  could 
only  be,  at  the  best,  a  possible  right  of  war,  and  they  took  upon  themselves  the  respon- 
sibility and  the  risk,  not  only  of  the  title  of  the  supposed  belligerents,  but  also  of  the 
consequences  which  might  be  visited  upon  themselves  as  participants  in  the  violence 
committed  by  the  parties  with  whom  they  became  thus  connected.  If  the  absence  of  all 
recognition  of  the  state  of  war,  on  the  part  of  the  Government  of  the  United  States, 
rendered  such  war  a  non-existing  thing,  so  far  as  the  citizens  of  the  United  States  were  con- 
cerned, as  the  undersigned  believes  that  he  had  already  demonstrated,  it  is,  of  course, 
unnecessary  to  repeat  that  the  parties  can  predicate  no  claim  of  title,  or  to  protection, 
after  the  circumstances  thus  de-tailed.  But  apart  from  this,  conclusive  as  it  is,  and  sup- 
posing, as  before,  for  the  sake  of  the  argument,  the  legal  existence  of  such  civil  war,  the 
undersigned  has  been  utterly  unable  to  discover  any  principle  of  public  law  which  denies 
to  the  Government  of  Lima,  even  as  a  belligerent,  the  right  to  interfere,  in  order  to  pre- 
vent the  spoliation  of  the  public  property,  and  to  punish  those  engaged  in  it,  who  might 
be  seized  in  the  very  commission  of  the  criminal  act. 

No  such  principle,  certainly,  is  established  in  the  case  cited  by  the  Hon.  Attorney- 
General  from  9  Crunch,  191.  The  Supreme  Court  did  no  more,  in  that  case,  than  decide 
that  the  conquest  of  the  Island  of  Santa  Cruz  by  the  British,  had  converted  the  territorial 
products  of  that  island  into  British,  and  therefore  enemy's,  property.  But  Great  Britain 
was  an  established  nation  which  had  seized  the  island  as  prize  of  war;  it  was  not  a  body 
of  rebels  who  had  managed  to  obtain  temporary  possession  of  a  portion  of  the  territory 
of  their  country.  So  too,  the  property  captured,  in  the  case  referred  to,  was  private 
property,  taken  upon  the  high  seas,  on  its  way  to  a  market.  It  was  not  public  property, 
remaining,  still,  with  the  parties  who  were  despoiling  it,  upon  the  very  spot  where  the 
outrage  was  being  committed. 

Neither  does  the  case  of  the  United  States  vs.  Rice  (4  Wheaton  246),  also  cited  by  the 
Attorney-General,  appear  to  the  undersigned  to  establish  any  adverse  doctrine.  There, 
the  Supreme  Court  determined  only,  that  the  conquest  and  military  occupation,  by 
Great  Britain,  of  a  port  belonging  to  the  United  Slates,  rendered  the  same,  for  the  time 
being,  a  foreign  port,  in  contemplation  of  the  Custom-House  laws  of  the  Union  ;  and  that 
the  restoration  of  the  authority  of  the  latter  over  such  port  did  not  render  the  jus  post 
liminii  applicable,  or  create  any  responsibility  to  the  laws  of  the  United  States,  on  the 
part  of  those  who  had  imported  goods  there  during  the  hostile  occupation.  In  that  case 
and  the  preceding  one,  the  conquest  and  hostile  possession  were  the  acts  of  a  declared 
public  enemy,  in  the  prosecution  of  a  public  war,  and  the  ruling  of  the  Court  does  no 
more  than  recognize  and  authorize  temporary  obedience  to  the  regulations  established 
by  the  conquerors,  and  enforced  by  their  military  power.  If  the  accused,  instead  of 
having  carried  merchandise  to  the  port  of  Castine,  paying  the  duties  levied  by  the 
English  upon  such  importations,  had,  with  full  knowledge,  purchased  from  the  enemy 
a  portion  of  the  public  property  of  the  United  States,  or  had  complicated  himself  with 
them  in  despoiling  such  property,  and  had  been  captured  thereafter,  on  the  spot,  by  the 
American  forces,  with  the  property  thus  criminally  acquired  still  on  board  of  his  vessel, 
there  might  then,  perhaps,  have  been  some  analogy  between  that  case  and  the  present. 
Yet  even  then,  it  would  still  have  been  the  case  of  a  conquest  made  and  authority  con- 


ferred  by  a  public  enemy,  in  a  perfect  war,  and  not  one  involving  merely  the  forcible  pos- 
session of  a  rebellious  party. 

The  case  quoted  from  Gallison  (vol.  2,  p.  485),  turns  upon  the  same  principles  as  that  of 
the  United  States  vs.  Rice,  in  nowise  confounding  simple  obedience  to  an  authority  de 
facto,  or  the  immunity  which  follows  such  obedience,  with  the  acquisition  of  positive 
rights  through  contracts  made  with  such  authority,  or  under  its  auspices.  The  explicit 
language  of  Mr.  Justice  Story,  on  pages  602,  503,  leaves  no  room  for  doubt  upon  the 
subject.  And  indeed  it  would  have  been  remarkable  if  the  obvious  distinction  referred 
to  had  not  be?n  respected,  when  we  consider  the  principle  which  is  at  the  foundation  of 
the  whole  matter.  Strangers  visiting  the  territory  of  a  friendly  nation  secure  them- 
selves against  all  responsibility,  by  obeying  in  good  faith,  what  is  commanded  by  the 
authorities  actually  existing  at  the  place  of  their  visit — but  why?  Because  they  are 
under  compulsion  so  to  obey,  and  it  would  not  be  just  to  hold  them  responsible  for  what 
they  could  not  lawfully  resist,  or  possibly  avoid.  The  immunity  which  such  obedience 
brings  with  it  is  the  correlative  of  the  obligation  and  the  necessity  to  obey.  But  when 
there  is  no  such  obligation,  and  no  necessity  whatever;  when  what  is  done  is  not  a  tiling 
commanded  or  prescribed,  but  purely  and  wholly  volantury  and  gratuitous — -whence 
proceeds  the  right  to  claim  immunity  ?  Surely  no  such  right  can  exist,  unless  the  obliga- 
tion of  obedience  be  confounded  with  the  privilege  of  speculation.  There  was  no  law, 
there  was  no  regulation  whatever,  on  the  part  of  the  intrusive  authorities  of  Iquique 
which  imposed  upon  foreigners  the  obligation  to  buy,  to  load,  or  to  transport  guano.  If 
the  parties  did  any  of  these  things  or  engaged  to  do  them,  it  was  for  their  own 
pleasure,  or  their  own  profit,  without  compulsion,  or  the  shadow  of  compulsion.  It  was 
because  they  thrust  themselves  forward,  in  a  spirit  neither  friendly  nor  honorable,  to 
take  advantage  of  the  unfortunate  circumstances  of  Peru.  It  was  not  because  those  cir- 
cumstances imposed  upon  them  any  force  or  necessity  whatever.  And  to  invoke,  now, 
in  their  behalf,  the  defence  that  they  did  no  more  than  submit  to  the  laws  which  they 
found  in  operation,  would  be  to  prostitute  a  respectable  and  wholesome  principle. 

Pursuing  the  train  of  events  which  the  case  discloses,  it  will  be  seen  that  the  vessels  in 
question  were  seized  by  a  national  armed  ship  of  Peru,  in  the  admitted  act  of  doing 
what  by  the  laws  of  that  republic  exposed  the  vessels  to  confiscation,  and  their  captains 
and  crews  to  the  punishment  affixed  to  robbery.  In  regard  to  the  guano  which  was 
found  on  board  of  them,  it  can  scarcely  be  necessary  to  say,  that  it  became  instantly, 
again,  the  property  of  the  nation.  If  it  were  necessary  to  invoke  the  jus  post  liminii, 
in  maintenance  of  this  conclusion,  the  undersigned  would  entertain  no  doubt  of  his  ability 
to  satisfy  the  Honorable  Secretary  of  State,  that  the  exclusion  of  movable  property 
from  the  operation  of  that  principle  is  confined  altogether  to  the  movables  of  individuals, 
and  that  in  every  case  public  or  national  property  when  possibly  recovered,  whether 
personal  or  real,  and  whether  it  be  in  public  or  private  hands,  returns  at  once  to  its 
legitimate  original  ownership.  But  there  is  a  principle,  mucli  more  simple,  which  ap- 
plies to  the  present  case,  and  that  is — that  the  guano  in  question  was  never  in  the  full 
power  of  the  captured  parties,  and  had  never  been  carried  to  a  place  of  security,  as  is 
requisite  to  vest  title  in  such  cases,  under  the  laws  of  war.  (Vattel,  Book  3,  Ch.  ]  3,  sec. 
196.)  The  act  of  appropriating  and  removing  it  had  not  been  consummated,  and  the 
right  of  property  consequently  remained  unaltered. 

The  undersigned  cannot  avoid  expressing,  in  this  connection,  his  profound  regret  and 
surprise  that  the  Honorable  Secretary  of  State  should  have  thought  it  just  and  proper, 
to  characterize  almost  as  "  a  piratical  enterprise,"  the  expedition  of  the  steamer  Tum- 
bes,  which  resulted  in  the  seizure  of  the  vessels  in  controversy,  within  the  unquestionablr 
and  sovereign  jurisdiction  of  the  Republic  of  Peru.  No  one  knows  better  than  the  Hon 
orable  Secretary,  how  little  expressions  of  that  sort  contribute  to  vindicate  justice  or 
give  force  to  reason.  To  controvert  or  discuss  them  would  do  so,  perhaps,  still  less,  and 
the  undersigned  is  persuaded  that  in  abstaining  from  further  commentary  upon  them  he 


93 


not  only  consults  the  dignity  of  the  nation  which  he  represents,  but  manifests  in  the 
most  unequivocal  manner,  the  consideration  which  his  government  sincerely  entertains 
for  that  of  the  United  States.  But  the  undersigned,  at  the  same  time,  is  unable  to  per- 
ceive or  admit  the  force  of  the  argument  with  which  the  Honorable  Secretary  has  been 
pleased  to  accompany  the  phrase  alluded  to.  If  the  rights  of  the  supposed  government 
of  Vivanco  were  those  of  a  government  de  facto,  and  none  other,  as  is  conceded;  and  if 
such  a  government,  as  it  cannot  be  denied,  cease?,  from  its  very  nature,  to  have  any 
rights  whatever,  at  the  instant  and  wherever  it  lacks  force  to  maintain  them — it  is  not 
easy  to  imagine  upon  what  right  the  spoliation  in  controversy  and  the  participation  of 
the  American  vessels  therein  can  be  made  to  rest,  when  their  very  seizure  by  the  Tumbes 
incontestably  establishes,  that  the  revolutionary  party  was  without  the  necessary  force 
there,  to  secure  the  exercise  of  the  privileges  which  it  pretended  to  sell  and  protect. 
And  let  it  not  be  said,  that  the  day  before  or  the  day  after,  a  different  state  of  things 
had,  or  would  have,  existed.  The  question  is,  as  to  the  day  when  the  seizures  were 
made.  A  nd  if,  on  that  day,  the  supposed  government  of  Vivanco  did  not  possess,  at  the 
places  referred  to,  a  force  sufficient  to  protect  the  vessels  which  were  there,  under  its 
licenses,  and  whose  rights  depended  altogether  upon  such  protection,  it  is  clear  that  such 
alleged  government  ceased,  then  and  there,  to  be  a  government  de  facto  ;  that  its  licenses 
became  null  and  no  effect,  and  that  the  rights  which  depended  upon  those  licenses  were 
null  and  ineffectual  also.  Tb>$  American  citizens  therefore  who,  with  full  knowledge 
and  upon  their  own  responsibility,  had  assumed  the  risk  of  such  a  result,  relying  upon 
force  as  the  only  guaranty  of  the  insecure  rights  to  which  they  pretended,  had  no  cause 
to  complain  if  those  rights  disappeared  with  the  force  which  was  to  give  them  their  only 
foundation  and  vitality.  They  knew,  unequivocally,  that  the  licenses  which  they  carried 
were  those  of  insurgent  and  unrecognized  authorities,  and  that  unless  those  licenses 
should  shield  them,  they  were  guilty  of  a  violation  of  the  Peruvian  laws  and  incurred 
the  penalties  prescribed  for  such  violation.  They  were  aware  that  without  the  force 
necessary  to  sustain  them,  those  licenses  were  worth  absolutely  nothing.  That  force 
was  wanting,  surely  the  consequences  must  rest  upon  themselves,  and  not  upon  the 
government  whose  authority  they  had  set  at  naught,  plundering  its  treasury  and  tread- 
ing its  laws  under  their  feet. 

But  there  are  other  considerations,  of  great  weight,  which,  of  themselves  alone,  would 
justify  the  action  of  the  Peruvian  Government,  even  if  that  action  be  still  regarded 
altogether  with  reference  to  the  relations  of  belligerents  and  neutrals. 

Let  the  conduct  of  those  who  controverted  the  American  vessels  be  glossed  as  it  may, 
it  hiid  no  solitary  characteristic  of  that  legitimate  commerce  which  belligerent  nations 
are  under  an  obligation  to  respect.  On  the  contrary,  it  was  without  more  nor  less  than 
voluntary  and  important  aid  afforded  to  the  revolutionary  and  traitorous  forces,  furnish- 
ing them,  directly  or  indirectly,  with  the  means  of  rendering  the  national  property  of 
Peru  available  in  the  war  which  they  wore  waging  against  their  country. 

Leaving  out  of  view  the  suspicious  circumstances,  developed  by  the  provisions  of  the 
charter  parties,  to  which  the  undersigned  alluded  in  his  previous  communication,  and  which 
have  not  been  and  cannot  be  explained  ;  omitting,  also,  to  comment  upon  the  obvious  and 
direct  result  of  the  trade  referred  to,  in  favor  of  the  rebels — there  are  certain  positive  reve- 
lations upon  the  point,  well  worth  considering,  which  appear  to  have  escaped  the  astute 
observation  of  the  Honorable  Secretary  of  State.  In  the  declaration  and  protest,  sworn 
to  before  the  Consul  of  the  United  States  in  Lima,  on  the  5th  of  February,  1858,  by  the 
master  of  the  Lizzie  Thompson,  and  communicated  to  the  Peruvian  Government  by  the 
American  Minister  there,  the  following  confession  will  be  found,  which  is  copied 
literally. 

"The  authorities  at  Iquique  granted  a  license  for  the  ship  Lizzie  Thompson  to  pro- 
ceed to  Pavilion  de  Pica,  in  that  province,  and  load  guano  there  on  account  of  the  Gov- 


ernment  of  Peru,  to  the  extent  of  one  thousand  tons  or  more,  in  conformity  with  a 
contract  made  -with  Frederick  Frcraut." 

In  the  declaration  of  the  crew  of  the  same  vessel,  sworn  to  before  the  same  consul, 
and  likewise  communicated  to  the  Government  at  Lima,  as  worthy  of  credit,  by  the 
American  Minister,  the  parties  confess  that  they  were  captured  "  while  the  ship  was 
takng  on  board  a  cargo  of  guano,  under  a  charter-party  made  with  the  authorities  DE 
FACTO,  and  sanctioned  in  a  legal  manner  by  the  Government  of  that  part  of  Peru." 

It  consequently  appears,  beyond  dispute,  by  these  declarations,  that  at  least  one  of  the 
vessels  seized  had  been  allowed  to  be  freighted  by  the  revolutionary  authorities  them- 
selves, under  the  contrivance  and  pretext  of  a  private  commercial  transaction,  and  that 
the  same  vessel  was  in  the  criminal  act  of  loading  grain,  for  the  benefit  and  on  secret 
account  of  these  authorities  when  she  was  seized  by  the  Tumbes,  There  is  no  loom 
whatever  for  doubt,  in  view  of  what  the  undersigned  has  heretofore  stated  with  regard 
to  her  charter-party,  that  the  other  vessel  was  in  precisely  the  same  pcsition,  commit- 
ting in  disguise  the  same  voluntary  breach  of  the  laws  and  rights  of  Peru,  and  rendering, 
for  pay,  the  same  assistance  to  her  enemies.  It  may  well  be  asked,  under  what  principle 
of  the  law  of  peace  or  war  an  intervention,  so  distinct  and  positive,  can  possibly  be 
styled  legitimate.  The  extension  which  the  Honorable  Attorney-General  is  disposed  to 
give  to  neutral  traffic  may  well  be  wondered  at,  when  he  designates  a  complicity  like 
this,  with  the  rebels  as  "  a  trade  lawful  and  fair  in  its  character."  Liberal  as  the  modern 
doctrines  may  be,  it  will  not  be  easy  to  cite  a  solitary  respectable  authority  which  has 
gone  to  the  extreme  of  protecting,  against  the  forces  of  a  revolutionized  nation,  the 
vessels  and  citizens  of  neutral  countries,  prostituting  themselves  for  hire  to  the  material 
service  of  the  insurgents,  and  assisting  them  directly  in  their  treason,  and  in  the  spolia- 
tion and  removal  of  the  national  property.  It  is  not  easy  to  imagine  a  more  effective 
and  substantial  guilty  participation  in  the  treason  itself,  or  an  act  more  in  conflict  with 
the  principles  so  becomingly  and  unequivocally  announced  by  the  Supreme  Court  of  the 
United  States,  in  the  case  of  Kennett  vs.  Chambers  (14  Howard,  50).  A  citizen  of  the 
United  States,  says  the  Chief  Justice,  "  can  do  no  act,  nor  enter  into  any  agreement  to 
promote  or  encourage  revolt  or  hostilities  against  the  territories  of  a  country  with  which 
our  government  is  pledged,  by  treaty,  to  be  at  peace,  without  a  breach  of  his  duty  as  a 
citizen,  and  the  breach  of  the  faith  pledged  to  the  foreign  nation." 

And  again,  on  the  same  page:  "He  is  bound  to  be  at  war  with  the  nation  against 
which  the  war-making  power  has  declared  war,  and  equally  bound  to  commit  no  act  of 
hostility  against  a  nation  with  which  the  government  is  in  amity  and  friendship/' 

An  allusion  becomes  likewise  necessary,  here,  to  a  marked  error  on  the  part  of  the 
Honorable  Attorney-General  in  a  matter  upon  which  he  relies  confidently  and  mainly,  to 
support  the  positive  conclusions  which  he  is  pleased  to  announce.  The  undersigned 
alludes  to  that  portion  of  the  Attorney-General's  opinion,  in  which  he  makes  the  follow- 
ing assertion ; 

"Neither  the  commander  of  the  Turnbes,  nor  the  government  which  he  served,  has 
attempted  to  vindicate  the  justice  or  legality  of  these  proceedings,  on  the  ground  that 
the  clearance  and  license  under  which  the  Americans  acted  were  unlawful  in  form  or 
substance.  It  is  not  pretended  that  the  authority  given,  on  the  face  of  the  license,  was 
insufficient  to  cover  the  acts  of  the  persons  who  had  it." 

It  is  not  to  be  denied  that  the  licenses  in  question  were  sufficient,  so  far  as  respects 
their  mere  phraseology,  to  cover  the  acts  in  controversy.  They  certainly  are  obnoxious 
to  no  objection  for  lack  of  amplitude  in  their  terms,  and  it  is  quite  true  that  no  such  de- 
fect has  been  ascribed  to  them.  But  the  Honorable  Attorney-General,  upon  taking  the 
pains  to  examine,  with  a  little  more  care,  the  last  communication  of  the  undersigned,  and 
the  correspondence  of  the  Government  at  Lima  with  the  Hon.  Mr.  Clay,  would  have 
found  a  positive  repudiation  there  of  the  legality  and  regularity  of  the  licenses  referred 


to,  both  in  form  and  substance.  He  would  have  seen,  that  under  the  commercial  regu- 
lations of  Peru — regulations  established  and  promulgated  for  many  years,  and  against  the 
force  and  validity  of  which  then.;  has  been  neither  legislation,  nor  decree  of  any  kind, 
even  on  the  part  of  the  pretended  revolutionary  government — no  authority  whatever  of 
the  republic  was  clothed  with  the  power  to  issue  licenses  for  the  transportation  of 
guano  to  foreign  parts,  and  that  the  Custom-House  at  Callao  alone  had  the  right  to  give 
clearances  to  vessels  with  such  cargoes  and  such  destination.  And  in  order  that  no  doubt 
may  remain,  and  no  protest  may  be  wanting,  upon  a  point  so  essential,  the  undersigned 
again  insists,  respectfully,  upon  the  irregularity  and  nullity  of  the  licenses  in  question, 
both,  as  to  form  and  substance — and  he  does  so,  altogether  irrespectively  of  any  question 
as  to  the  legitimacy  of  the  authorities  by  whom  the  licenses  were  issued,  and  the  suffi- 
ciency of  the  terms  of  the  instruments  themselves.  He  means,  distinctly,  to  say:  That 
allowing  to  Don  Felipe  Rivas,  for  the  sake  of  argument,  all  the  privileges  of  an  author- 
ity de  facto,  the  said  Rivas  had  no  better  right  to  issue  the  licenses  in  controversy,  than 
the  commander  of  the  "  Home  Squadron"  of  the  United  States  would  possess,  to  author- 
ize the  entry  of  a  Peruvian  vessel  into  the  port  of  New  York  without  complying  with 
the  custom-house  laws  of  this  country.  It  is  not  enough  that  an  authority  should  be  a 
lawful  one ;  it  is  necessary  that  it  should  at  the  same. time  be  a  competent  authority. 
It  must  not  only'have  some  legitimate  jurisdiction,  but  must  be  clothed  with  the  very 
jurisdiction  which  the  case  requires,  and  which  is  pretended  to  be  exercised. 

Let  us  look,  then,  at  the  facts  upon  which  the  efficacy  of  these  pretended  licenses  has  been 
rested.  The  rebel  officer  who  issued  them,  styles  himself  "  Brigadier  General  of  the 
National  Army,  and  Commander  General  of  the  Navy."  He  performed  his  official 
functions,  as  ia  not  denied,  on  board  the  rebel  ship  Apurimac,  accompanying  her  on  her 
continual  voyages  up  and  down  the  coast.  De  facto,  as  well  as  under  the  titles  which 
he  assumed,  he  was  a  military  officer — nothing  more.  The  effigy  of  a  custom-house 
which  he  kept  up  at  Iquique,  was  but  a  simple  farce,  as  appears  from  the  affidavits  of 
the  parties  interested.  The  captain  of  the  Lizzie  Thompson  (as  will  appear  by  his  formal 
declaration  taken  before  the  regular  tribunal  in  Callao,  and  duly  communicated  to  the 
Minister  of  the  United  States  at  Lima)  on  being  asked — in  virtue  of  what  permit  or 
license  he  sailed  for  Pabellon  de  Pica  to  load  guano  ?  replied — "  In  virtue  of  the  license 
granted  by  the  Commandancia  General  of  the  Navy  at  Iquique,  and  of  the  special  per- 
mission of  Don  Felipe  Rivas,  as  the  only  authority  commanding  at  that  place."  And 
the  captain  of  the  Georgiana,  in  his  sworn  declaration  of  Feby.  3d,  1858,  (taken  before 
the  American  Consul  at  Callao,  and  communicated  by  the  Minister  of  the  United  States 
at  Lima  to  the  Peruvian  Government)  calls  this  very  license  of  Rivas  "  a  custom-house 
license,"  saying  that  when  leaving  Iquique,  he  procured  a  custom-house  license  to  pro- 
ceed to  Point  Lobos  and  another  place,  to  load  guano."  Thus  this  identical  Rivas  con- " 
stituted  personally  the  only  authority  actually  ruling  in  Iquique,  and  exercised  in  person, 
although  under  the  forms  and  with  the  ceremonies  of  a  custom-house,  the  absolute  power 
of  disposing  at  his  mere  will  and  pleasure  of  all  the  property  of  the  republic  on  its 
southern  coast.  And  yet,  although  perfectly  aware  of  all  this,  as  they  themselves 
confess  ;  notified,  likewise,  by  the  very  form  of  the  licenses  themselves,  of  the  irregularity 
of  their  source ;  knowing  that  those  licenses  depended  altogether  for  their  efficacy  upon 
the  authority  of  a  military  officer,  without  any  defined  jurisdiction,  and  only  exercising 
local  civil  functions  in  virtue  of  his  guns  and  in  their  temporary  presence  ;  the  claimants 
still  pretend  that  no  allegation  of  irregularity,  in  form  or  substance,  can  be  made  against 
their  licenses,  and  that  they  themselves  deserve  from  their  government  the  consideration 
which  is  due  to  a  lawful  commerce,  innocently  undertaken,  under  the  shield  of  the 
authorities  whom  it  was  their  obligation  to  obey.  The  sole  and  conclusive  answer  to 
all  this  is  that  which  has  already  been  made.  Neither  as  Brigadier  General  of  the  Army, 
nor  as  Commander  General  of  the  Navy,  nor  even  as  Administrator  of  the  Customs  at 
Iquique — supposing  him  to  have  exercised  the  functions  of  all  of  the  three  offices,  de  jure, 


96 


as  he  usurped  them  in  fact — would  Rivas  have  possessed,  undef  any  law  or  decree,  of 
custom  of  Peru,  the  right  to  grunt  the  licenses  which  he  issued.  They  were  irregular, 
usurped,  and  without  lawful  precedent  of  any  sort;  issued  fraudulently,  and  accepted, 
as  has  been  shown,  with  full  knowledge  of  their  defects  and  their  criminality.  Unless, 
therefore,  an  authority  de  facto  is  clothed  with  powers  more  ample  than  those  which 
are  the  recognized  attributes  of  the  same  authority,  when  established  </<?  jure,  it  is  im- 
possible that  such  licenses,  so  issued,  can  be  the  basis  of  any  right,  in  any  view  of 
the  laws  of  peace  or  war. 

But  the  undersigned  does  not  desire,  any  longer,  to  occupy  the  attention  of  the  Honor- 
able Secretary  of  State,  with  the  discussion  of  the  questions  which  depend  upon  the  legal 
existence  of  a  civil  war  in  Peru,  at  the  period  referred  to ;  having  demonstrated,  as  it 
seems  to  him,  the  nullity  of  the  pretensions  in  controversy,  even  supposing  that  inad- 
missible theory  to  be  the  correct  one.  He  relies,  with  reiterated  confidence,  upon  the 
principle  asserted  in  his  note  of  the  27th  of  March,  and  corroborated  by  the  views  here- 
tofore embodied  in  tin's  communication  ;  that  as  the  Government  of  the  United  States 
had  not  recognized  the  existence  of  a  civil  war  in  Peru,  there  was,  as  respects  the  vessels 
in  question,  neither  war  nor  neutrality  there,  and  they  found  themselves,  as  foreign  ves- 
sels in  a  friendly  port,  bound  to  know  and  obey  the  laws  of  the  government  recognized 
by  that  of  their  own  country,  and  responsible  10  the  tribunals  of  Peru  for  every  infrac- 
tion of  those  laws  which  they  might  commit.  In  the  case,  already  cited,  of  Rose  vs.  Himely, 
and  in  those  of  Hudson  vs.  Guestier,  and  Lafont  vs.  Big^lou ,  heard  at  the  same  time,  deci- 
ded in  the  same  connection  (4  Cranch,  293),  and  reviewed  afterwards  (6  Cranch,  281),  with 
the  case  first  named,  the  undersigned  seems  to  himself  to  perceive  so  absolute  an  iden- 
tity, in  principle  and  circumstances,  with  the  case  now  under  discussion,  that  he  pro- 
poses concluding  his  present  observations  with  an  allusion  to  them. 

A  portion  of  the  Island  of  St.  Domingo  being  in  open  rebellion,  and  several  of  its 
ports  in  the  possession  of  the  insurgents,  the  French  authorities  of  the  island  provided 
by  decree  for  the  arrest  and  confiscation  of  all  vessels,  which  might  carry  on  commerce 
with  the  rebels,  or  be  found  within  a  certain  distance  of  certain  enumerated  portions  of 
the  coast.  The  American  vessels,  whose  capture  gave  rise  to  the  judicial  proceedings 
referred  to,  had  violated  the  decree  just  mentioned,  and  were  seized  in  consequence. 
Without  entering  into  the  details  of  the  decisions,  it  is  sufficient  for  the  undersigned  to 
note,  that  the  following  propositions  were  recognized  and  established,  viz. : 

1.  That  the  decree  alluded  to  was  a  legitimate  and  authoritative  municipal  law,  not 
withstanding  the  revolution. 

2.  That  notwithstanding  the  actual  existence,  de  faclo,  of  a  war  between  the  rebels 
and  the  French  Government,  such  war  did  not  exist  de  jure,  so  as  to  protect  citizens  of 
the  United  States  as  neutrals  in  the  violation   of  the  said  decree,  inasmuch  as  the 
existence  of  such  war  had  not  been  officially  recognized  by  the  United  States  Govern- 
ment. 

3.  That  the  capture  of  the  Vessels  within  (and   even  without)  the  territorial  jurisdic- 
tion of  the  island — they  having  infringed  the  provisions  of  the  prohibiting  decree  alluded 
to — was  a  lawful  capture  and  of  plenary  force.     And— 

4.  That  the  judgment  of  a  competent  French  tribunal,  ratifying  the  capture  and  con- 
demning the  vessels  accordingly,  was  final  and  conclusive  against  the  parties  interested, 
•without  ulterior  recourse  of  any  kind,  judicial  or  political. 

The  Honorable  Secretary  of  State  was  made  aware,  by  the  communication  of  the  un- 
dersigned, dated  the  27th  of  March,  of  the  various  municipal  regulations  of  Peru,  pro- 
hibiting the  guano  trade  and  the  visits  of  foreigners  to  the  guano  deposits — regulations 
•which  were  openly  violated  by  those  on  board  the  Georgiana  and  the  Lizzie  Thompson. 
Those  vessels  having  been  seized,  within  the  territorial  jurisdiction  of  Peru,  and  carried 


97 

to  the  port  of  Callao,  in  order  that  their  violation  of  those  laws  might  be  passed  upon 
by  the  competent  tribunals  of  the  country,  the  limited  abilities  of  the  undersigned  do 
not  enable  him  to  comprehend  how,  without  doing  violence  to  the  principles  just  enume- 
rated, as  settled  by  the  Supreme  Court,  it  is  possible  to  introduce  into  the  present  case 
the  question  of  an  unrecognized  civil  war,  for  the  purpose  of  placing  in  doubt  the  abso- 
lute right  of  those  tribunals,  to  decide,  without  ulterior  recourse,  and  without  responsi- 
bility on  the  part  of  the  Peruvian  Government,  what  the  municipal  laws  and  institutions 
of  Peru  may  authorize  them  to  determine.  Tho  undersigned  has,  in  fact,  but  just  now- 
learned  from  his  government,  that  the  tribunals  referred  to,  in  the  exercise  of  their  con- 
stitutional functions  and  acting  with  the  impartiality  peculiarly  due  to  the  circum- 
stances of  the  cases,  have  recently  decreed  the  confiscation  of  the  vessels  in  controversy, 
for  violation  of  the  laws  so  often  referred  to  in  this  discussion.  The  Executive  Govern- 
ment of  Peru  being  under  the  same  obligation  to  respect  the  judgments  of  those  tribu- 
nals, which  would  be  incumbent  upon  the  Government  of  the  United  States  in  the  case 
of  a  decision  by  the  Supreme  Court,  and  being  equally  without  right  or  power  to  hinder 
or  modify  the  judicial  action,  the  undersigned  is  gratified  to  know  that  the  Courts  of  his 
country  have  proceeded  in  accordance  with  the  principles  sanctioned,  as  he  has  showed, 
by  the  Supreme  Court  of  this,  under  circumstances  so  entirely  alike. 

If  in  the  free  discussion  upon  which  he  has  felt  it  his  imperative  duty  to  enter,  on 
this  occasion,  the  undersigned  has  principally  occupied  himself  wilh  the  decisions  of  the 
Supreme  Court  of  the  United  States,  upon  the  various  points  which  have  arisen,  it  has 
not  been,  as  he  begs  the  Honorable  Secretary  of  State  to  believe,  with  any  particular 
desire  to  place  the  doctrines  of  that  high  tribunal  in  contrast  with  those  asserted  by  the 
political  government  of  (lie  Union.  On  the  contrary,  he  would,  more  naturally,  have 
desired  to  address  himself  to  those  authorities  upon  the  law  of  nations  with  which  he  is 
in  re  familiar,  h  id  not  the  opinion  of  the  Honorable  Attorney -General  of  the  United 
States  been  officially  communicated  to  him,  wherein  that  high  functionary  refers,  in  cor 
roboration  of  his  views,  to  the  decisions  of  the  Chief  Tribunal  of  his  nation,  with  so  un- 
hesitating a  confidence,  and  so  absolute  an  exclusion  of  the  possibility  of  a  rational 
opinion  to  (he  contrary  of  his  own,  that  the  undersigned  had  no  recourse  but  to  investi- 
gate the  supposed  authority  for  conclusions  so  overwhelming.  And  having  found,  in 
his  judgment,  a  very  decided  departure,  on  the  part  of  the  learned  Attorney-General, 
from  the  principles  consecrated  so  repeatedly  by  the  solemn  sanction  of  the  same  ele- 
vated tribunal;  believing  too  that  by  rendering  such  departure  palpable  to  the  Honor- 
able Secretary,  and  through  him  to  His  Excellency  the  President  of  the  United  States, 
ho  might  reverse  an  obstacle  in  the  way  of  a  satisfactory  settlement  of  this  controversy, 
the  undersigned  felt  the  utility  of  addressing  himself  to  investigation,  even  at  the  ex- 
pense of  the  unavoidable  prolixity  of  citations  so  numerous  and  extended.  The  results 
of  his  labors  inspire  him  with  the  most  lively  confidence. 

And  if  doctrines,  established  so  deliberately  by  the  Supreme  Court  of  the  Union, 
could  require  any  confirmation,  it  would  be  found  in  (he  fac^  that  t  e  Chili.m  Govern- 
ment, directly,  and  that  of  France,  through  the  medium  of  its  representative  at  Lima, 
have  adopted  and  recognized  the  same  principles,  in  immediate  and  recent  connection 
with  the  present  case.  The  Honorable  Secretary  will  remember,  that  at  the  time  of  the 
seizure  of  the  Georgiana  and  the  Lizzie  Thompson,  various  Chilian  vessels  were  likewise 
taken  by  the  Tumbes,  at  the  same  place,  engaged  in  the  commission  of  the  same  offence. 
He  will  likewise  call  to  mind  that  Mr.  Freraut,  the  French  Consul  at  Iquique,  was  the 
charterer  of  the  Lizzie  Thompson  for  the  unlawful  voyage  in  the  prosecution  of  which 
die  was  captured.  The  Chilian  Government,  having  bten  appealel  to  for  its  interven- 
tion, by  the  parties  interested  in  the  captured  vessels,  not  only  refu.-eJ  to  intervene,  but 
communicated,  directly  and  decidedly,  to  the  Minister  of  Peru,  its  recognition  of  the 
perfect  right  under  which  the  seizure  had  been  made.  Mr.  Freraut  also,  the  Consul  of 
France  in  Iquique/  having  solicited  an  official  intervention,  in  his  behalf,  on  the  part  of 

13 


98 


the  Charge  d' Affaires  of  France,  at  Lima — that  functionary  not  only  rejected  his  appli- 
cation, but  informed  him  that  the  Government  of  Peru  had  acted,  in  the  premises,  in 
virtue  of  a  perfect  and  indisputable  right.  And  in  order  to  mark  more  conspicuously 
the  recognition  of  this  right  by  the  French  Government,  its  Representative  at  Lima  de- 
manded from  the  consul  referred  to  a  surrender  of  his  official  clurge,  and  hastened  to 
communicate  to  the  Government  of  Peru  the  steps  which  he  had  so  taken.  The  under- 
signed will  not  surrender  the  hope  of  being  still  able  to  say  to  his  government,  that  the 
Government  of  the  United  States  participates  in  the  just  and  friendly  views,  adopted  so 
frankly  and  voluntarily  by  the  Powers  referred  to. 

Convinced,  as  the  Honorable  Secretary  cannot  fail  to  be,  of  the  sentiments  which  ani- 
mate the  Government  of  Peru  in  its  relations  with  that  of  the  United  States,  it  is  of 
course  needless  to  intimate,  that  neither  the  pecuniary  interest  involved  in  the  case,  nor 
any  arbitrary  or  retaliatory  spirit,  has  had  the  slightest  share  in  the  resistance  which  has 
been  made  to  the  present  reclamations.  For  Peru,  the  question  is  one  of  principles,  vi- 
tally important — principles,  v.  pon  the  rightful  settlement  of  which,  depend  alike  the  do- 
mestic peace,  the  preservation  of  her  national  wealth,  her  credit  and  her  destiny.  Her 
principal  riches — the  resources  up  n  which  she  relies  for  her  development  and  improve- 
ment in  the  future — are  to  be  found  in  the  guano  deposit  upon  her  coasts.  Jf  the 
mutineers  of  a  national  vessel,  or  any  band  of  pirates  or  rebels,  by  the  simple  act  of 
taking  possession  of  a  guano  deposits,  under  the  pretext  of  a  political  revolution,  are 
converted,  from  that  instant,  into  a  belligerent  power,  and  confer,  ipso  facto,  upon  the 
citizens  or  adventurers  of  other  countries,  the  character  and  rights  of  neutrals,  so  that, 
without  any  previous  action  on  the  part  of  their  own  governments,  they  can  buy,  de- 
spoil and  remove,  at  their  free  will,  the  national  property  which  may  be  at  the  place 
in  dispute — not  only  without  responsibility  to  the  Government  of  Peru,  but  under  the 
protection  of  the  poweiful  nations  to  which  they  may  belong — it  is  clear  that  the  apparent 
resources  of  Peru  have  for  her  no  effective  existence  whatever.  It  is  in  vain  to  recog- 
nize her  right  to  the  guano  deposits  in  question,  because,  with  the  qualification  sug- 
gested, her  right  to  her  property  is  but  the  sad  privilege  of  being  despoiled  of  it.  It  is 
in  vain  to  go  through  the  form  of  treaties  of  peace  and  amity  with  governments,  if  the 
individual  citizens  of  the  contracting  powers  have  the  privilege  of  determining,  for 
themselves,  when  they  see  fit,  the  existence  of  a  state  of  war  which  annuls,  at  oi:e  blow, 
all  the  rights  of  Peru  over  her  own  property,  and  opens  the  door  to  the  utter  anni- 
hilation of  her  sovereignty. 

And  it  must  not  be  said,  in  reply,  that  it  is  the  duty  of  Peru,  herself,  to  maintain  al- 
ways, .with  sufficient  force,  the  authority  which  she  claims  and  desires  to  exercise.  In- 
ternational laws  have  been  adopted,  and  treaties  are  entered  into,  in  order  that  nations 
may  not  of  necessity  be  always  upon  the  footing  of  war.  Every  onward  movement  of 
civilization  should  tend  towards  the  banishment  of  force,  and  the  elevation  of  justice  and 
reason,  as  the  guides  and  security  of  nations.  Every  principle  of  public  law  consecrates 
the  protection  of  the  weak,  and  enforces  the  obligation  of  the  powerful,  to  vindicate,  as 
against  their  own  citizens,  the  rights  of  nations  which  have  not  strength  enough  to  take  caie 
of  their  own  defence.  Nor  is  this  merely  a  guaranty  to  the  weak — it  is  none  the  less  a  pro- 
tection to  the  strong.  There  is  no  nation,  whatever  be  its  power,  which  is  always  proof 
against  revolution,  or  can  hope  to  be  forever  secure  against  the  temporary  usurpation  of 
its  ports  or  its  possessions.  The  United  States,  themselves,  with  their  colossal  strergth, 
have  not  of  late  been  able  to  avoid  the  unhappy  spectacle  of  one  of  their  territories  in 
open  rebellion.  And  it  is  in  order  that  such  domestic  strife,  to  which  all  nations  are  exposed, 
may  be  confined  within  the  narrowest  limits  of  injury ;  in  order  that  the  peace  of  the 
world  may  not  every  day  be  broken — or  human  blood  be  uselessly  poured  out — or  in- 
ternational relations  complicated  fatally — that  governments,  and  not  individuals,  have 
been  clothed  with  the  exclusive  right  of  judging  whether  there  is  peace  or  war — peace 
within,  as  well  as  peace  without — civil  war,  not  less  than  public?  war,  The  Government  of 


99 

the  United  States,  by  virtue  of  its  Republican  constitution  is  in  a  position  to  illustrate, 
as  with  its  gigantic  power  it  has  the  means  of  maintaining,  the  broad  and  elevated  prin- 
ciples of  civilization  and  humanity.  The  Government  of  Peru  therefore  will  not  be- 
lieve, and  much  less  will  the  undersigned  anticipate,  with  his  long  experience  of  the 
honorable  and  just  spirit  by  which  this  government  is  animated — that  it  will  give  its 
practical  approbation,  in  the  end,  to  principles  which  must  be  utterly  fatal  to  Peru,  con- 
verting the  wealth  which  Providence  has  bestowed  upon  her,  for  her  regeneration  and 
prosperity,  into  the  mere  temptation  and  prize  of  revolution  and  anarchy. 

The  undersigned  begs  the  Honorable  Secretary  of  State  to  accept  the  assurances  of  his 
most  respectful  consideration. 

J.    I.    DE    OSMA. 

The  Honorable  Secretary  of  State  of  the  United  States. 


DEPARTMENT  OF  STATE,       ) 
WASHINGTON,  Nov.  29th,  1858.  J 

The  undersigned,  Secretary  of  State  of  the  United  States,  has  the  honor,  in  con- 
formity with  the  intimation  conveyed  in  his  note  of  the  24th  instant,  to  communi- 
cate herewith  to  Sefior  Juan  I.  de  Osma,  Minister  Resident  of  the  Peruvian 
Government,  a  copy  of  the  instruction  which,  under  date  of  the  26th  instant,  has 
been  addressed  by  the  undersigned  to  the  Envoy  Extraordinary  and  Minister  Plen- 
ipotentiary of  the  United  States  in  Peru,  in  relation  to  the  cases  of  the  two 
American  vessels,  the  Georgiana  and  Lizzie  Thompson,  seized  and  detained  by  the 
Peruvian  authorities. 

After  having  given  to  Mr.  Osma's  learned  note  of  the  4th  August,  the  most 
mature  consideration,  and  with  every  disposition  to  give  to  the  Peruvian  Govern- 
ment the  benefit  of  the  argument  therein  so  ably  prosecuted,  the  undersigned  is 
unable  to  assent  to  Mr.  Osma's  conclusions,  and  has  reviewed  some  of  the  promi- 
nent points  of  dissent,  in  the  accompanying  despatch,  which  for  reasons  of  expedi- 
ency is  addressed  to  our  Minister  at  Lima,  but  the  copy  of  which,  herewith 
enclosed,  Mr.  Osma  will  be  good  enough  to  regard  as  the  reply  to  his  note  of  the 
4th  August. 

Mr.  Osma  will  find  himself  by  this  note  released  from  the  detention  and  personal 
inconvenience  to  which  he  has  been  subjected  on  account  of  this  discussion,  the 
Government  of  the  United  States  having  determined  to  adjust  the  questions 
involved  with  the  Peruvian  Government  at  Lima,  through  the  minister  of  the  for- 
mer at  that  place. 

The  undersigned  avails  himself  of  this  opportunity  to  offer  to  Mr.  Osma  the  as- 
surances of  his  distinguished  consideration. 

LEWIS  CASS. 

To  His  Excellency  So  or  DON  JUAN  I.  DE  OSMA, 
&c.,  &c.,  &c. 


100 


DEPARTMENT  OF  STATE, 
WASHINGTON,  Nov.  26th,  1858. 
To  J.  EANDOLPH  CLAY,  Esq., 

&c.,  &c.,  &c : 

gir? — With  my  despatch  to  you  of  the  1st  ultimo,  I  transmitted  a  copy  of  the 
note  of  Mr.  Osma  to  this  department,  and  also  informed  you  that  the  question  in- 
volved in  the  cases  of  the  Qeorgiana  and  Lizzie  Thompson  had  been  again  submitted 
to  the  Attorney-General  for  his  consideration,  and  that  I  hoped  to  receive  his 
answer  in  time  to  convey  to  you  the  views  of  the  department  upon  the  whole  mat- 
ter before  the  departure  of  the  next  mail.  The  pressure  of  business  has  prevented 
the  Attorney-General  from  giving  the  subject  the  necessary  attention  till  within  a 
few  days  ;  and  I  embrace  the  earliest  opportunity,  after  the  receipt  of  his  views,  to 
make  known  to  you  the  opinion  of  this  government,  and  its  expectation  that  the 
Government  of  Peru  will  recognize  the  justice  of  these  claims,  and  will  make  pro- 
vision for  their  payment. 

It  is  not  denied  by  the  Government  of  Peru  that  a  state  of  civil  war  actually  ex- 
isted in  that  country  at  the  date  of  the  transactions  in  question.  The  fact  is  as 
credibly  attested  and  as  universally  known  as  the  existence  of  a  government  at 
Lima.  Nor  is  it  more  a  matter  of  doubt  or  dispute  that  the  party  opposed  to  the 
government  whose  central  power  is  at  Lima,  had  got  possession  of  the  southern 
part  of  the  country,  including  the  scene  of  the  acts  complained  of,  the  port  of  Iquique, 
and  the  guano  deposits.  From  that  portion  of  the  country  the  former  government 
had  been  expelled,  its  adherents  driven  out  or  subjugated,  its  authority  overturned, 
and  its  laws  suspended  or  nullified,  except  in  so  far  as  the  conqueror,  for  his  own 
convenience,  permitted  them  to  remain  in  force.  Upon  these  incontrovertible  facts, 
the  department  based  the  proposition  that  the  master  of  the  American  vessel  going 
to  the  southern  part  of  Peru  was  justified  in  obe};ing  the  authorities  which  he 
found  established  there,  though  they  had  been  set  up  by  a  recent  revolution  ;  and 
for  such  obedience  he  was  not  liable  to  be  punished  by  the  government  at  Lima 
any  more  than  by  the  government  at  Madrid.  A  stranger  is  required  to  obey  the 
laws  of  the  country  he  goes  to.  The  laws  of  every  country  are  those  rules  of  con- 
duct which  are  prescribed  by  those  who  hold  and  exercise  a  present  control  over 
it — not  the  will  or  wishes  of  other  persons  who  assert  a  naked  claim  to  its  govern- 
ment, without  the  power  of  enforcing  obedience  to  their  decrees.  An  act  which 
was  lawful  when  tried  by  the  standard  of  lawfulness  in  force  at  the  time  and  place 
it  was  done,  cannot  be  tried  over  again  by  another  standard  previously  abrogated, 
and  afterwards  set  up.  These  are  elementary  principles  of  natural  justice  on  which 
all  public  law  is  founded. 

Mr.  Osma  insists,  however,  that  a  civil  war  in  one  country  cannot  be  known  to 
the  people  of  another,  but  through  their  own  government,  that  the  existence  or 
non-existence  of  civil  war  is  a  question,  not  of  fact,  but  of  law,  which  no  private 
person  has  a  right  to  decide  for  himself — that  foreigners  must  regard  the  former 
stats  of  things  as  still  existing,  unless  their  respective  governments  have  recognized 
the  change.  But  I  am  very  clearly  of  the  opinion  that  an  American  citizen  who  goes 
to  Southern  Peru  may  safely  act  up3ii  the  evidence  of  his  own  senses.  If  he  sees  that 
the  former  government  has  been  expelled  or  overturned  by  a  civil  revolution,  and 
a  new  one  set  up  and  maintained  in  its  place,  he  cannot  be  molested  or  even  blamed 
for  regulating  his  behavior  by  the  laws  thus  established-— nay,  he  has  no  choice  ; 
the  government  de  facto  will  compel  his  obedience.  It  will  not  give  him  leave  to 
ignore  the  matter  of  fact  while  he  waits  for  the  solution  of  a  legal  problem  at  home. 


101  \  j  >:>  :    ::•/> 

Besides,  if  he  resists  the  authority  of  the  party  in  possession  on  the  ground  that 
another  has  the  right  of  possession,  he  departs  from  his  neutrality,  and  so  violates 
the  duty  he  owes  to  both  the  belligerents,  as  well  as  the  laws  of  his  own  country. 

Mr.  Osraa's  rule,  if  carried  out  to  its  consequences,  would  be  fatally  injurious  to 
the  rights  and  interests  of  commerce.  Let  us  see  how  it  would  operate  in  a  case 
which  may  be  readily  supposed.  An  American  vessel,  bound  to  a  distant  country 
for  purposes  of  lawful  trade,  unexpectedly  finds  on  her  arrival  that  a  civil  war  has 
revolutionized  the  government  at  the  port  of  her  destination.  Her  commander  is 
not  at  liberty  to  regard  the  fact  as  a  fact ;  he  must  come  back  and  settle  it  as  a 
matter  of  law,  by  procuring  a  recognition  from  the  Government  of  the  United 
States.  He  returns  with  the  recognition  to  find  that  during  his  absence  a  counter 
revolution  has  restored  the  old  order  of  things,  and  quieted  the  strife.  The  law  and 
the  fact  are  at  cross  purposes  still ;  still  the  unfortunate  trader  is  compelled  to  shut 
his  own  eyes  on  the  plain  truth,  and  see  only  through  the  medium  of  his  govern- 
ment. I  know  of  no  authority  for  such  a  doctrine.  The  public  law  of  the  world 
does  not  require  nations  to  regulate  their  intercourse  with  one  another  by  legal 
fictions,  but  by  existing  facts  known  and  ascertained  in  the  way  most  likely  to  pre- 
clude mistake. 

Although  the  Peruvian  Minister  has  shown  great  familiarity  with  our  judicial 
decisions,  yet  being  a  stranger  it  was  natural  that  he  should  fall  into  some  errors. 
It  is  not  my  purpose  to  assume  the  task  of  enumerating  those  errors  in  detail,  but 
merely  to  remark  that  Mr.  Osma  has  seemed  to  mistake  for  rules  of  international 
law,  expressions  which  the  Supreme  Court  used  only  to  define  the  limits  of  its  own 
jurisdiction.  Mr.  Osma,  I  apprehend,  has  also  erroneously  supposed  that  what  the 
judges  said  concerning  the  national  independence  of  new  States,  was  applicable  to 
the  matter  in  hand. 

But  this  discussion  of  abstract  principles  is  not  the  shortest  nor  the  best  way  to 
settle  a  practical  difficulty.  Mr.  Osma  has  felt  this  to  be  true.  Laying  aside  his 
reasoning  upon  general  rules,  he  comes  at  length  to  the  very  case  itself.  Speaking 
of  the  actual  parties,  their  actual  contact,  and  the  actual  circumstances  by  which 
they  were  surrounded,  he  makes  the  following  frank  and  inequivocal  admission : 
"  The  right  to  enter  the  port  of  Iquique,  to  be  received  as  citizens  and  vessels  of 
u  a  friendly  power,  to  be  protected  tuhilst  they  obeyed  thelocal  and  custom-house  laws) 
"  and  to  depart  without  further  responsibility  upon  lawful  voyages ;  all  this,  it 
"  must  be  admitted  was  the  perfect  right  of  the  captains  in  question  and  their  ves- 
"  sels."  This  acknowledgment  narrows  the  ground  of  controversy  between  the 
two  governments  very  materially,  and  might  have  settled  it  altogether  if  Mr. 
Osma  had  not  fallen  into  what  appears  to  be  another  error. 

Mr.  Osma  contends  that  foreigners  going  to  Iquique  are  justifiable  in  obeying  the 
laws  of  the  government  de  facto,  in  so  far  only  as  that  obedience  is  entirely  passive, 
but  positive  rights  voluntarily  acquired  with  the  sanction  of  such  laws  are  not  entitled 
to  any  respect  whatever.  On  the  contrary,  I  hold  it  to  be  perfectly  clear  that,  as 
to  foreigners,  the  government  de  facto  is,  to  all  intents  and  purposes,  substituted  in 
the  place  of  the  late  government.  The  persons  having  at  present  the  control  of  the 
country  may  give  to  strangers  every  privilege  which  could  have  been  conferred  on 
them  by  the  former  rulers,  in  case  those  rulers  had  not  been  expelled.  If  the  gov- 
ernment at  Lima  had  retained  possession  of  the  guano  deposits,  and  had  authorized 
a  cargo  of  that  article  to  be  shipped  by  an  American  vessel,  the  lawfulness  of  the 
shipment  would  hardly  have  been  contested.  When  the  place  was  conquered  from  its 
previous  rulers  all  authority  and  jurisdiction  over  it,  legislative,  executive  and  judi- 


.  - . 


102 


cial,  So" far  as  foreigners  were  concerned  with  it,  passed  to  and  became  vested  in  the 
conquerors.  Mr.  Osma  does  not  deny  that  the  revolutionary  party  had  power  to 
regulate  foreign  commerce  at  those  ports  which  lay  within  the  territory  controlled 
by  it,  to  prescribe  the  rate  of  duties  payable  on  imports  or  exports,  and  to  appro- 
priate the  public  revenue  arising  therefrom  to  its  own  use.  How  can  it  be  said 
that  a  government  to  which  powers  like  these  are  conceded  has  no  authority  to 
license  the  shipment  of  guano  ?  According  to  Mr.  Osma's  reasoning  there  are  two 
governments  in  Southern  Peru.  Each  stands  in  an  attitude  of  deadly  hostility  to 
the  other,  but  foreigners  are  bound  by  the  laws  of  both.  The  one  is  supreme  in 
the  power  to  levy  taxes  on  general  commerce,  but  the  trade  in  guano  can  be 
licensed  only  by  the  other.  Guano  is  a  usual  and  lawful  article  of  commerce,  but 
a  dealer  must  refuse  to  take  it  from  the  parties  who  have  it  to  sell,  he  must  make  his 
contracts  with  others  who  are  out  of  possession  and  cannot  deliver  it.  The  Gov- 
ernment at  Lima  has  made  one  law  on  the  subject,  but  is  wholly  unable  to  execute 
it,  or  to  protect  any  person  who  obeys  it,  while  the  revolutionary  government  has 
another  law,  backed  by  all  the  power  which  is  necessary  to  enforce  it.  Under 
these  circumstances,  I  am  constrained  to  insist  that  an  American  is  not  punishable 
for  failing  to  square  his  conduct  by  the  requirements  of  the  former  law.  The  fact 
that  the  steamer  Tumbes  was  able  to  arrest  the  American  vessels  in  the  act  of 
taking  in  their  cargoes  does  not  prove  to  my  satisfaction  that  the  Government  at 
Lima  had  the  power  to  make  laws  at  the  place  of  the  capture.  A  mere  irruption 
by  the  forces  of  one  belligerent  into  the  territory  of  another  does  not  create  legisla- 
tive supremacy.  A  sudden  dash  across  the  border,  followed  by  a  retreat  equally 
rapid,  is  not  a  conquest  of  the  hostile  country.  Even  if  the  Tumbes  had  been 
accompanied  by  force  enough  to  subdue  the  country  and  keep  possession  of  it,  the 
Government  at  Lima  would  not  have  been  authorized  to  punish  the  peaceable 
citizens  of  neutral  states  for  acts  which  were  lawful  at  the  time  they  were  done. 

If  the  commander  of  the  Tumbes  had  contented  himself  with  asserting  the  title 
of  his  government  to  the  guano,  by  taking  it  out  of  the  American  vessels,  and 
compelling  them  to  leave  the  coast  empty,  the  case  would  have  been  a  very  differ- 
ent one.  While  I  cannot  admit  that  even  this  would  be  justified  by  the  law  of 
nations,  the  case  would  not  be  accompanied  with  the  aggravating  circumstances 
which  characterize  the  subject  under  consideration.  But  the  vessels  themselves 
were  seized — the  masters  and  crew  were  captured,  and  carried  out  of  the  jurisdic- 
tion of  one  government  into  that  of  another,  where  they  were  tried  and  condemned 
under  laws  to  which  they  owed  no  obedience.  This  was  a  severe,  and  as  it  appears 
to  me,  a  cruel  infliction  upon  the  peaceful  traders  of  the  United  States,  for  acts 
which  were  in  perfect  accordance  with  the  laws  of  the  country  where  they  were 
done. 

The  right  of  a  belligerent  to  capture  the  public  property  of  his  enemy,  has  never, 
that  I  am  aware,  been  denied,  unless  Mr.  Osma's  note  is  to  be  construed  as  a  denial. 
In  my  opinion  such  captures  give  to  the  taker  a  title  which  neutrals  may  regard 
as  perfectly  good,  and  which  carries  with  it  all  the  incidents  of  true  ownership, 
including  the  right  of  alienation.  That  it  extends  to  both  belligerents  in  a  civil 
war.  as  much  as  to  two  hostile  nations,  must  be  conceded,  if  the  writers  on  public 
law  are  not  grossly  mistaken  in  saying  that  when  such  a  war  exists,  the  parties  are 
to  be  regarded  as  separate  political  communities. 

If  the  Government  at  Lima  had  been  able  to  retain  possession  of  the  guano  de- 
posits, it  certainly  might  have  authorized  every  act  which  was  done  by  the  masters 
of  the  Lizzie  Thompson  and  the  Georgiana.  The  opinion  has  already  been  ad- 


103 

vanced  by  the  Department,  that  the  new  government  succeeded  to  all  the  rights  of 
the  old  Government  at  Lima,  as  soon  as  the  latter  was  expelled,  and  the  supremacy 
of  the  former  was  established  by  force  of  arms. 

Mr.  Osma  insists  that  the  masters  of  the  Georgiana  and  Lizzie  Thompson  violated 
their  neutrality  by  giving  unlawful  aid  and  comfort  to  the  revolutionary  chiefs.  If 
this  allegation  were  proved  to  be  true  in  point  of  fact,  the  parties  on  whose  behalf 
this  reclamation  is  made  would  be  wholly  unworthy  the  protection  of  their  govern- 
ment. But  I  have  seen  no  evidence  nor  heard  of  any  to  show  that  they  are  open 
to  such  an  accusation.  The  purchase  of  guano  from  the  revolutionary  government, 
or  even  the  shipment  of  it  on  account  of  this  government,  is  not  a  violation  of  neu- 
tral obligations.  If  Peru  had  other  beds  of  guano  within  the  territory  not  con- 
quered from  her,  she  might,  and  undoubtedly  would,  have  dealt  with  American 
citizens  and  other  foreigners  in  the  same  way.  But  the  Peruvian  Government  has 
rot  arrested,  nor  tried,  nor  condemned  these  vessels,  and  the  men  who  were  on 
them,  for  taking  part  in  the  war,  but  for  a  violation  of  the  revenue  laws  enacted  by 
the  Government  of  Lima.  That  government  has  ignored  the  fact  of  the  war  itself—- 
denied practically  the  conquest  of  the  country  by-  its  enemies,  and  treated  the 
Americans  as  if  there  had  been  no  war  and  no  conquest.  It  will  scarcely  fall  back 
at  this  stage  of  the  discussion,  upon  a  charge  which  was  not  preferred  against  the 
parties  before  their  condemnation. 

In  conclusion,  it  is  the  duty  of  this  government  to  insist  upon  the  proper  repa- 
ration for  what  it  cannot  but  regard  as  a  very  grievous  wrong.  The  relations  which 
the  United  States  have  always  sought  to  establish  and  maintain  with  Peru,  are 
those  of  the  closest  friendship.  This  government  is  still  animated  by  the  same 
spirit,  and  trusts,  with  great  confidence,  that  it  is  fully  reciprocated.  The  wrong 
must  be  repaired,  and  the  Government  of  the  United  States  expects  that  the  repa- 
ration will  be  no  longer  delayed. 

A  copy  of  this  despatch  has  been  sent  to  Mr.  Osma,  with  the  intimation  that  no 
further  discussion  will  be  held  here  upon  the  subject. 

I  am,  Sir,  your  obedient  servant, 

LEWIS  CASS. 


To  His  Excellency  Mr.  DE  OSMA 

Minister  Resident  of  (he  Republic  of  Peru. 

WASHINGTON. 

Sir, — The  questions  you  have  submitted  to  me,  now  the  subject  of  a  correspondence 
between  Peru  and  the  United  States,  arising  from  the  seizure  under  the  authority  of  the 
former,  of  the  American  vessels  the  Georglana  and  Lizzie  Thompson,  on  the  24th  of 
last  January,  I  have  with  great  care  considered.  This  was  due  to  their  intrinsic  import- 
ance, and  especially  was  called  for  by  the  attitude  of  my  own  government.  If  feeling 
could  influence  the  performance  of  a  professional  duty,  there  is,  in  this  instance, 
the  strongest  case  for  its  operation.  The  opinion,  therefore,  which,  after  anxious  examin- 
ation, I  have  formed,  and  am  now  about  to  express,  has  been  arrived  at  from  a  conviction 
too  decided  to  be  affected  by  any  adventitious  circumstances,  and  whatever  weight  it 
may  be  entitled  to,  is,  perhaps,  in  some  degree,  increased  by  that  consideration.  The 
facts,  as  I  collect  them  from  the  correspondence,  are  these  :  Both  the  vessels  were,  at 
the  time  of  their  seizure,  engaged  in  loading  with  guano  from  the  deposits  of  that  article 
at  Punta  de  Lobos  and  Pabellon  de  Pica,  for  exportation  to  foreign  ports,  These  de- 


lOi 


posits,  as  well  as  all  such  deposits,  have  always  notoriously  belonged  to  the  Government 
of  Peru,  and  their  exportation  and  the  mode  of  making  it  have  ever  been  regulated  by 
her  laws.  Her  principal  source  of  revenue,  for  years,  has  been  these  deposits.  They 
constitute  a  part  of  (he  treasure  of  the  nation,  as  much  so  as  the  bullion  that  may,  from 
time  to  time,  be  in  her  exchequer.  They  contribute  to  her  support  in  peace  and  in  war, 
and  are  as  vital  to  her  interests  as  the  imposts  which  daily  contribute  to  the  treasury  of 
the  United  States  are  vital  to  the  interests  of  the  latter.  The  clearances  which  these 
vessels  obtained,  and  under  which  they  were  loading,  were  not  granted  by  the  authority 
of  Peru,  nor  were  the  licenses  or  contracts  granted  or  made  by  her  authority.  On  the 
contrary,  these  were  all  of  them  from  a  usurping  body  of  her  subjects,  committing  by 
these  very  acts  treason  against  Pern.  In  fact,  however,  the  usurpers  had  for  the  time 
actual  possession  of  the  named  places,  but  it  was  in  known  violation  of  the  authority  of 
the  government.  Neither  this  possession  nor  the  pretended  government  under  which  it 
was  held  was  ever  acknowledged  as  legal  by  the  other  nations  of  the  world,  and  es- 
pecially, not  by  the  United  States.  On  the  contraiy,  as  to  the  latter,  Mr.  Secretary 
Cass,  in  his  letter  to  your  Excellency  of  22d  Ma}r,  1858,  when  denying  that  belligerent 
rights  attached  to  Peru  because  of  the  insurrection  of  Vivanco,  and  in  seeking  on  that 
ground  to  make  good  a  clai'n  upon  Peru  for  the  detention  of  another  American  vessel, 
the  Dorcas  C.  Yealon,  and  to  justify  the  conduct  of  the  American  Minister  at  her  Court, 
in  the  prosecution  of  such  claim,  expressly  states  "  that  the  foreign  relations  of  the 
"country  (Peru)  were  undisturbed  by  its  internal  commotions."  And  in  another  part  of 
the  same  letter  he  asserts,  that  notwithstanding  such  commotions,  "  the  usual  commer- 
"  ciul  relations  between  Peru  and  the  United  States  were  continued,  and  the  vessels  of 
"  the  former  resorted  to  the  ports  of  the  latter,  carrying  freight,  and  searching  employ- 
"  ment  as  before."  It  is  also  known  that  during  the  struggle,  such  as  it  was,  no  legisla- 
tive or  executive  recognition  of  the  existence  of  a  civil  war  was  made  by  the  United 
States.  On  the  contrary,  all  the  diplomatic  intercourse  between  the  two  governments 
continued  unchanged,  and  recently  a  treaty  was  negotiated  between  tin-in  by  the  execu- 
tive, which  received,  at  the  last  session,  the  sanction  of  the  Senate.  Under  these  ciicum- 
stances,  the  question  in  issue  between  the  two  government?,  and  upon  which  you  have 
done  me  the  honor  to  ask  my  opinion  is,  have  the  United  States  any  claim  upon  your 
government  for  damages  or  indemnity  of  any  kind,  for  the  seizures  of  the  Oeorgiana  and 
Lizzie  Thompson  ? 

First, — Upon  principle,  irrespective  of  judicial  or  other  authority,  can  such  a  claim  be 
maintained  1  I  am  perfectly  clear  that  it  cannot,  and  for  these,  to  me,  very  obvious  and 
controlling  reasons  :  Until  there  is  a  recognized  change  in  the  condition  of  a  government, 
such  government  is  responsible  to  foreign  nations  for  all  wrongs  committed  within  its 
limits  upon  the  persons  or  property  of  their  subjects  or  citizens.  This  responsibility  has 
been  more  than  once  asserted  and  enforced  by  the  United  States. 

It  is  ho  answer  to  such  a  demand  that  the  defaulting  government  was  willing  but 
unable  to  afford  the  necessary  protection.  The  duty  to  protect  implies  and  involves  the 
ability  to  protect.  It  is  the  fact— the  failure  to  perform  the  duty,  not  the  cause  of  the 
failure — that  imposes  the  responsibility.  Every  government  assumes  upon  itself  the 
obligation  to  secure  other  governments  and  their  people  and  property  against  domestic 
wrongs,  and  is  therefore  responsible  for  all  the  consequences  of  such  wrongs.  ]f,  how- 
ever, there  exists  an  insurrection  or  rebellion,  so  marked  and  long  continued  as  probably 
to  result  in  general  or  permanent  success,  it  is  for  other  nations,  upon  their  own  respon- 
sibility, to  decide  for  themselves  whether  they  will  consider  the  rebellious  as  an  actual 
government,  deal  with  it  as  such,  and  hold  it  as  such  to  every  national  responsibility. 
Until  this  be  done  the  original  government  is  to  be  treated  as  the  only  government,  its 
"foreign  relations"  are  to  be  considered  as  "  undisturbed,"  and  its  "  usual  commercial 
"  relations"  with  other  nations  continue  "as  before."  These  principles  are  too  obvious 
to  be  disputed?  an.d  they  indeed  being  admitted  by  Mr.  Secretary  Cass,  in  his  letter  o( 


105 

22  J  May,  can  there  be  a  doubt  that  for  any  wrong  perpetrated  upon  an  American  citizen 
or  his  property,  or  upon  the  honor  of  the  United  States,  by  the  insurrectionary  chief 
Vivanco,  or  by  his  orders,  the  rightful  Government  of  Peru  would  have  been  liable?     If 
so,  must  it  not  be,  is  it  not,  equally  apparent,  indeed,  is  it  not  a  consequence,  that  for  an  injury 
or  wrong  done  to  Peru  by  the  United  States,  or  by  her  citizens,  under  cover  and  through 
the  instrumentality  of  the  same  insurrection,  the  United  States  cannot  shelter  themselves 
from  the  responsibility  of  such  insurrection  ?     The  nation  may,  it  is  conceded,  by  its 
proper  department  and  under  national  amenability,  adroit  the  insurrection,  and  deal  with 
the  government  created  by  it  as  a  legal  government.    But  when  this  is  done  the  original 
government  is,  to  that  extent,  as  far  as  the  recognizing  nation   is  concerned,  at  an  end, 
and  its  responsibility  for  the  acts  of  the  new  government  is,  for  the  same  reason,  at  an 
end.     Whilst,  however,  the  relations  between  the  original  government  and  other  nations 
remain  unchanged  ;  whilst  that  continues  to  be  recognized  and  dealt  with  as  the  only 
government,  the  existence  of  a  rebellion  or  insurrection,  no  matter  what  its  origin,  its 
purpose  or  its  condition  can  have  no  effect  on  the  obligations  of  that  government  to  the 
rest  of  the  world,  or  impair  in  any  degree  its  rights  as  against  the  rest  of  the  world. 
These,  all  of  them,  remain  precisely  as  they  would  have  been  if  no  insurrection  or  rebel- 
lion had  occurred.     Jf  these  propositions  be  correct,  and  I  do  not  see  how  they  can  be 
questioned,  it  would  follow,  that  if  at  the  date  of  the  seizure  of  the  Georyiana  and 
Lizzie  Thompson,  the  vessels  had  been  seized  and  confiscated  by  Vivanco,  or  under  his 
authority,  the  United  Stales  would  have  had  a  clear  claim  for  indemnity  on  the  Govern- 
ment of  Peru,  and  I  have  no  doubt  would  by  all  proper  means  have  exacted  it.     The 
claim  upon    Portugal  for  the  destruction  by  a  British  force   of  the   privateer   General 
Armstrong,  in  a  Portuguese  port,  and  upon    Naples,   for  oul rages    committed    upon 
American  citizens  and  property  by  France  or  its  authority,  whilst  that  power  actually 
governed  Naples,  are  practical  illustrations  of  the  doctrine  that  inability  to  protect  other 
nations  or  their  subjects,  no  matter  how  absolute  (it  Avas  so  in  each  of  the  instances  al- 
luded to),  is  no  excuse  for  the  failure  to  protect.    This  being  so,  must  it  not  also,  and  for 
the  same  reason,  be  true  that  a  nation  so  liable  must  have  exactly  corresponding  rights 
against  other  nations  and  their  people?     To  maintain   a  responsibility  against  such  a 
nation  for  the  wrongs  of  rebellious  subjects,  or  for  other  unauthorized  wrongs  which  it 
was  not  in  her  actual  power  at  the  time  to  prevent,   and  to  maintain  exemption  from, 
liability  for  wrongs  committed  upon  her,  under  the  cover  of  the  same  rebellious  or  un- 
authorized power,  is  so  obviously  unjust,  that  it  would  seem  to  be  only  necessary  to 
state  it,  to  have  it  at  once  condemned.     And  yet  the  wrong  done  Peru,  and  for  which 
these  vessels  were  seized,  was  of  that  description,  and  the  claim  made  by  the  United 
States  for  indemnity  for  the  loss  consequent  upon  the  seizure  must  be  made  good,  if  at  all, 
exclusively  upon  that  ground.     The  idea  that  a  civil  war   was  in   fact  then  existing  in 
Peru,  could  give  to  citizens  of  the  United  States  no  rights  against  Peru,  or  take  from 
Peru  no  rights  against  the  citizens  of  the  United  States,  unless  by  such  war,  and  by  some 
authorized  public  act  of  some  legitimate  authority  of  the  United  States,  the  antecedent 
relations  between  the  two  nations  had  become  changed.     These  remaining  the  same,  the 
rights  and  obligations  of  each  necessarily  continued  the  same,  and  these  so  continuing, 
the  rights  and  obligations  of  the  subjects  and  citizens  of  each  towards  the  government 
and  subjects  and  citizens  of  the  other  necessarily  continued  the  same.   The  United  States 
could  not  know  and  treat  in  all  their  foreign  and  commercial  relations  with  the  Govern- 
ment of  Peru  as  if  peace  reigned  throughout  the  borders  of  the  latter,  and  no  insurrec- 
tionary or  rebellious  standard 'had  been  raised,  and    be   in  a   condition   to  hold   Peru 
responsible  for  losses  suffered  by  their   citizens   from   acts   of  wrong  perpetrated  by 
unauthorized  insurrection  or  rebellion,  and  at  the  same  time  have  the  right  to  exact  of 
Peru,  indemnity  for  acts  done  in  maintaining  her  own  laws  against  the  illegal  conduct  of 
citizens  of  the  United  States.  The  two  rights  are  so  inconsistent  that  it  is  impossible  that 
they  can  co-exist,  and  yet  the  latter  is  the  very  right  which  the  United  States  are  now 

u 


106 


asserting,  whilst  having  carefully  abstained  from  taking  the  only  steps  that  could  have 
deprived  them  of  the  former,  that  is  to  say,  recognizing  in  a  proper  legal  manner,  before 
the  wrong  now  complained  of,  the  existence  of  a  civil  war  in  Peru.  The  doctrine  ap- 
plicable to  such  a  state  of  things  as  did  prevail  in  Peru  at  the  moment,  and  antecedent 
to  the  seizure  of  the  vessels,  does  not  depend  on  the  fact  whether  war  inter  se  the  parties 
to  it  then  existed  or  not,  nor  whether  in  its  subsequent  termination,  its  prior  existence 
was  admitted  by  Peru.  It  rests  entirely  on  the  fact,  whether  the  United  States  in  some 
constitutional  form  had  recognized  it,  and  by  so  doing,  to  that  extent  had  modified  their 
relations  with  Peru.  This,  we  have  seen,  was  not  only  not  done,  but,  on  the  contrary, 
the  entire  intercourse  between  the  two  nations  assumed  the  continuing,  undisturbed,  un- 
impaired, and  unquestioned  existence  of  each.  The  rights  and  correlative  obligations  of 
each  consequently  remained  undisturbed  and  unimpaired,  and  for  the  good  name  of  each 
should  also  be  held  unquestioned.  A  different  doctrine  would  be  pregnant  with  mis- 
chief. In  its  application  to  the  United  States  it  would  be  especially  hazardous.  Formed 
as  their  Union  is  of  the  States  composing  it,  stretching  from  ocean  to  ocean,  and  occasion- 
ally, however  erroneously,  actuated  amongst  themselves  by  convictions  of  vitally  con- 
flicting interests,  it  may  be  conceived  possible  that  in  some  moment  of  political  madness, 
some  state  or  portion  of  a  state  may  raise  the  standard  of  revolt,  and  set  at  defiance  the 
constitutional  and  legal  authority  of  the  General  Government,  and  for  a  time  be  in  the 
actual  possession  of  a  sea-board  town.  A  foreign  vessel  enters,  finds  no  local  authority 
but  the  usurped  and  known  usurped  one.  The  custom-house  is  in  its  possession.  It 
allows  entries ;  it  grants  clearances.  It  admits  importations  without  duty,  or  the  duty 
it  exacts  it  appropriates.  It  disposes  of  public  property.  Can  any  one  suppose  that 
such  vessels  and  their  officers  or  agents,  and  they  escaping,  that  their  governments 
would  be  harmless  by  the  United  States  ?  Would  that  government  admit  as  an  excuse, 
much  less  a  justification  for  such  acts,  that  the  parties  "  had  a  right  to  enter  any  port  of 
"  the  republic  open  to  foreign  commerce,  and  not  blockaded,  for  the  prosecution  of  their 
"  commercial  enterprises  ;  and  it  was  their  duty  after  such  entrance  to  obey  the  author- 
"  ities  they  might  find  established  there,"  and  that  the  principle  "  applies  with  equal 
"  force  to  questions  of  internal  administration  touching  the  public  revenue  ?"  The 
inquiry  carries  with  it  its  own  answer.  State  an  opposite  case,  arising  under  the  same 
circumstances.  The  vessel  goes  into  the  port,  finding  the  proper  authority  absent  or  con- 
trolled, her  master  refuses  to  enter  his  cargo, — his  vessel  and  cargo,  and  himself, 
officers,  and  crew  are  seized — the  two  former  confiscated,  and  the  latter  imprisoned 
for  refusing  obedience  to  "  the  authorities"  they  found  established  there.  England,  whose 
flag  the  vessel  bears,  calls  upon  the  United  States  for  indemnity.  Would  the  justice  or 
honor  of  the  nation  for  a  moment  refuse  to  render  it?  Would  they  plead  the  excuse, 
that  for  the  time  they  were  powerless  to  prevent  the  wrong  ?  Would  they  invoke  the 
defence  of  the  existence  of  a.  civil  war,  and  that  in  such  a  case  the  party  in  actual  pos- 
session is  the  authority  "  established  there,"  which  it  is  the  duty  of  the  captain  after 
entering,  "  to  obey  ?"  No  government  could  retain  the  respect  of  the  world,  which 
should  be  found  maintaining  such  obviously  conflicting  propositions.  And  yet,  the 
indemnity  demanded  in  the  cases  I  am  considering,  involves  this  very  identical  doctrine. 
Put  another  case :  The  Mormons  have  but  recently  set  at  open  defiance  the  authority  of 
the  United  States.  The  country  of  their  residence  has  been  for  many  months  in  their 
actual  and  conclusive  possession  and  under  their  actual  and  exclusive  jurisdiction.  The 
territory  embraces  a  portion  of  the  public  domain.  An  army  of  the  United  States  is 
assembled  to  put  down  the  rebellion.  The  civil  war  exists,  the  power  of  the  govern- 
ment to  put  it  down  by  the  means  under  the  control  of  the  executive,  is  by  many 
doubted.  The  struggle  promises  to  be  at  least  a  long  and  arduous  one.  Individual 
citizens,  not  parties  to  the  rebellion,  find  their  way  there  in  the  prosecution  "of  their 
11  commercial  enterprises."  Strangers,  from  other  lands,  are  there,  with  like  motives,  and 
taking  with  them  goods  liable  to  duty  on  importation,  into  the  United  States.  They 


10T 

find,  on  getting  there,  no  authority  whatever  but  the  Mormons.  This  they  "find  estab- 
lished there."  If  this  they  are  bound  "  to  obey,"  then,  with  this,  as  is  alleged  to  have 
been  the  rights  of  the  Georgiana  and  Lizzie  Thompson"  are  they  authorized  to  contract. 
The  dutiable  goods  are  sold  by  the  license  of  actual  authority,  without  paying  imposts 
to  the  United  States.  The  public  lands  are  purchased,  and  the  purchase  money  handed 
to  the  usurping  vendors,  and  patents  granted.  Would  such  acts  be  recognized  as  legal 
by  the  United  States  ?  Would  the  goods  be  held  exempt  from  forfeiture?  Would  the 
title  of  the  United  States  to  the  lands  be  held  extinguished  ?  Would  the  actors  be 
adjudged  guiltless  ?  Certainly,  yes,  upon  the  grounds  assumed  by  Mr.  Secretary  Cass, 
and  Mr.  Attorney-General  Black,  and  yet,  can  any  one  doubt  that  a  different  doctrine 
would  and  should,  in  such  a  case,  be  maintained,  and  successfully,  by  the  United  States? 
Could  the  foreign  importer  or  the  land  purchaser  rely  on  the  rights  arising  from  a  state 
of  civil  war,  and  be  able,  with  effect,  to  stop  the  United  States  from  contesting  the  exist- 
ence of  such  a  war  by  the  fact  that  they  had  admitted  it  in  "the  recognition,"  with  their 
officers  and  the  officers  of  the  Mormons,  said  to  have  been  recently  closed,  "  for  their 
"submission  to  its  authority," — and  that  by  the  terms  of  the  treaty,  "unconditionally 
"accepted,"  and  approved  and  ratified  by  both  sides,  the  state  of  civil  war  was  fully 
recognized  ?  Would  they  then  be  found  admitting  that  the  restoration  of  their 
authority  over  the  district  "could  justly  work  no  forfeiture  for  acts  previously  done" 
under  sanction  of  the  temporary  though  usurped  power  of  the  Mormon  rule  ?  Is  it  not, 
on  the  contrary,  obvious,  that  all  such  acts  would  be  esteemed  as,  from  the  first,  wholly 
illegal,  and  imparting  no  right  whatever,  or  exempting  in  any  respect  the  parties  con- 
cerned, from  responsibility  to  the  United  States?  And  what  in  my  view  makes  the 
claim  upon  Peru  the  more  remarkable  is  the  fact,  that  in  the  very  letter  of  Mr.  Secretary 
Cass  asserting  it,  he  states,  what  is  certainly  true  in  fact  and  in  law,  the  continuing  effi- 
cacy of  their  antecedent  treaty  with  Peru,  to  the  stipulation  of  which,  he  says,  "they 
"hold  on,"  being  the  stipulation  "which  guarantees  protection  to  the  citizens,  without 
"  regard  to  whatever  changes,  violent  or  peaceable,  may  take  place  in  the  government  of 
"  that  country."  To  exact,  under  this  treaty,  without  regard  to  changes  in  the  condition 
of  Peru,  protection  for  the  citizens  of  the  United  States,  and  to  make  these  very  changes, 
however  violent  and  temporary,  the  justification  for  disregarding  the  laws  and  property 
of  Peru,  and  for  enforcing,  as  is  now  attempted,  a  claim  of  indemnity  against  her,  for 
acts  which  such  laws  and  the  protection  of  her  property  imperatively  demanded  of  her 
interests,  honor,  and  sovereignty,  are  propositions  ,so  glaringly  untenable  and  unjust, 
that  they  cannot  be,  even  plausibly,  supported  by  argument.  Upon  principle,  then, 
irrespective  of  other  authority,  I  consider  the  demand  clearly  untenable. 

Secondly. — I  proceed  now  to  examine  it  on  authority.  It  is  to  this  source  that  Mr. 
Attorney-General  Black  mainly  resorts,  and  it  is  there  that  I  propose  to  follow  him. 
I  think  it  will  be  seen,  and  I  say  it  with  all  respect  due  to  his  well-known  ability,  that 
he  has  misunderstood  the  cases  which  he  refers  to,  and  misapplied  the  principles 
which  they  contain.  The  question  is  (for  perspicuity  I  state  it  again) :  What  are  the 
legal  consequences  of  a  domestic  struggle,  not  recognized  by  a  foreign  nation,  as 
establishing  the  state  of  civil  war,  so  as  to  give  to  the  insurrectionists,  as  well  as 
the  existing  government,  the  rights  of  governments  in  their  transactions  with  such 
foreign  nation,  or  its  citizens  or  subjects  ?  Is  it  competent  for  such  citizens  and 
subjects  to  treat  with  the  new  party,  as  a  government  of  itself,  without  incurring 
responsibility  to  the  former  government  ?  Mr.  Attorney-General  holds  that  it  is,  and  on 
authority.  Is  this  so?  I  think  not,  and  I  will  try,  and  I  hope  successfully,  to  make 
that  opinion  good.  It  is  to  be  ever  kept  in  view,  that  in  such  state  of  things,  two  ques- 
tions present  themselves.  Ftrst, — What  are  the  rights  of  war  inter  se  of  the  adverse 
parties?  and  Secondly, — What  are  the  rights  of  either,  between  itself  and  other  nations? 
The  government  existing  before  the  rebellion,  or  insurrection,  was  the  only  one,  over  the 
whole  people,  known  to  or  recognized  by  other  governments.  The  introduction  of  two 


108 


nations  into  the  family  of  nations  out  of  this  one,  can  only  be  effected  by  the  acts  or 
assent  of  the  former;  and,  until  that  is  done,  they  are  known  but  as  one  people,  under 
one  government.  All  treaties  existing  at  the  period  of  the  insurrection  remain  in  force. 
All  reciprocal  rights  and  obligations  between  itself  and  other  nations  remain  unimpaired. 
Whether  these  are,  and  how  far  they  are,  to  be  esteemed  legitimately  modified  or  extin- 
guished, on  the  part  of  such  government,  by  her  inability  to  comply  with  them,  because 
of  domestic  insurrection  or  civil  war,  it  is  for  other  nations  to  decide.  She  cannot  of 
herself,  as  of  right,  set  up  such  a  defence.  Until  that  decision  shall  be  made,  she  is 
bound,  as  at  first,  by  all  national  obligations,  whether  arising  from  treaties  or  the  law  of 
nations.  To  effect,  therefore,  a  change  in  her  condition,  so  as  to  impair  her  rights  or 
diminish  her  duties,  can  only  be  done  by  other  nations.  And  how  is  this  to  be  accom- 
plished ?  It  can  be,  but  in  one  mode — recognizing,  by  each  nation's  proper  authority,  the 
state  of  civil  war,  and  thereby  agreeing  to  deal  with  each  party  to  it  as,  for  the  time, 
sovereign  and  independent,  and  equally  a  member  of  the  national  family.  But  this 
cannot  be  done  partially.  It  must  be  done,  as  to  all  purposes  and  places,  for  which  and 
in  which  sovereignty  has  a  right  to  exhibit  itself.  It  must  be  extra  as  well  as  intra- 
territorial — on  the  sea  as  well  as  the  land.  It  must,  of  course,  be  so  declared  as  to  vest- 
each  with  belligerent  rights,  to  the  same  extent  as  in  the  case  of  other  belligerent 
nations.  Wattel,  in  the  passage  cited  by  Mr.  Attorney-General,  book  III,  &c.,  ch.  18,  p. 
295,  states  that  this  is  the  result  of  such  an  event.  "The  parties  in  such  a  contest,"  he 
tells  us,  "must  necessarily  be  considered  as  thenceforward  constituting,  at  least  for  a 
"time,  two  separated  bodies,  two  distinct  societies,  standing  in  precisely  the  same  pre- 
"  dicament  as  two  nations  who  engage  in  a  contest,  and  being  unable  to  come  to  an  agree- 
"  ment,  have  recourse  to  arms."  Here  is  found  no  limitation  of  such  right.  They  are  not 
considered  by  the  author  as  clothed  with  these  rights  on  the  land,  and  not  elsewhere. 
On  the  contrary,  the  rights  are  held  to  be  identical  with  those  of  two  admitted  nations 
at  war  with  each  other.  And  so,  indeed,  in  that  part  of  his  opinion,  does  Mr.  Attorney- 
General  understand  him.  "  They  are  entitled  (says  Mr.  Attorney)  one  as  much  as  the 
"other,  to  the  respect  of  foreigners  who  deal  with  them,  or  meet  them  on  sea  or  land." 
And  yet,  with  what  is  submitted  as  a  palpable  inconsistency,  he  disclaims,  in  a  subse- 
quent portion  of  his  opinion,  the  general  operation,  in  fact,  of  the  doctrine.  He  says,  "  I 
"am  not  required,  for  any  purpose  of  this  opinion,  to  say  how  far  a  revolutionary  party 
"  can  carry  on  war  upon  the  ocean,  and  vex  the  commerce  of  the  world  upon  its  common 
"highway,"  and  adds,  that  it  has  been  doubted  "  whether  a  mere  body  of  rebellious  men 
"  can  thrust  itself  among  the  family  of  nations,  and  claim  all  the  rights  of  a  separate 
"power,  on  the  high  seas,  without  some  sort  of  recognition  from  foreign  governments." 
And  yet,  why  is  such  a  recognition  for  that  purpose  required?  Each,  says  Wattel,  is 
an  equally  independent  party;  both,  in  such  an  event,  are  "precisely  in  the  same  pre- 
dicament as  two  nations  "  engaged  in  a  contest.  Each,  therefore,  does  not  thereby 
"thrust  itself  among  the  family  of  nations,"  but  is,  by  the  war  itself,  one  of  the  family. 
That  Mr.  Attorney  is,  however,  correct  in  requiring  to  give  maritime  rights  to  such  a 
body,  "some  sort  of  recognition  from  foreign  governments  "  must  be  admitted.  But  the 
admission  proves  that  he  has  mistaken  Wattel.  The  author  did  not  mean  to  lay  it 
down  as  national  law,  that  a  state  of  civil  war,  not  recognized  by  oilier  nations,  in  any 
way  impaired  the  rights  and  obligations  of  such  nations,  as  to  the  one  in  which  the  war 
exists,  or  the  rights  and  obligations  of  that  nation,  To  effect  this,  such  a  war,  any- 
where, whether  on  land  or  sea,  demands  the  proper  recognition  of  its  existence,  by  the 
competent  departments  of  the  other  governments  of  the  world,  and  the  assent  thereby 
involved,  that  each  of  the  parties  to  it  was  to  be  esteemed,  for  the  time  being,  one  of 
"  the  family  of  nations."  He  was  referring  to  the  general  doctrine,  not  to  its  particular 
application,  or  to  the  form  and  manner  in  which  it  was  to  become  applicable.  This,  last, 
it  is  the  province  of  each  of  the  other  nations  to  decide  for  itself.  This  they 
may  do,  sooner  or  later,  but  until  done,  each  has  the  right,  and  is  at  its  consequent 


109 

duty,  to  consider  the  nation  where  the  struggle  prevails,  as  still  one  and  indivisible,  bound 
by  all  its  original  national  obligations,  and  entitled  to  all  its  original  national  rights.  So 
fur  from  a  different  rule  being  held  in  the  United  States,  the  very  cases  cited  by  Mr. 
Attorney  will  show  it  to  be  that  rule  and  no  other.  To  examine  each  would  unneces- 
sarily extend  this  opinion.  As  establishing  the  doctrine  he  supposes  Watte!  to  lay 
down,  Mi1.  Attorney  refers  to  the  case  of  the  "  Santissitna  Trinidad,"  737.  In  that  case 
one  of  the  questions  was,  "  whether  the  Independencia  was  a  public  ship,  belonging  to  the 
"  Government  of  Buenos  Ayres,  and  entitled,  in  the  ports  of  the  United  States,  to  the 
"  privileges  and  immunities  of  a  public  ship."  One  of  the  objections  to  this  title  was, 
that  Buenos  Ayres  had  not  "  been  acknowledged  as  a  sovereign  independent  gov- 
"  ernment  by  the  Executive  or  the  Legislature  of  the  United  States."  And  in  meeting 
the  objection,  the  Court  held  "the  Government  of  the  United  States  has  recognized  the 
"  existence  of  a  civil  war  between  Spain  and  her  colonies,  and  has  avowed  a  deterruina- 
"  tion  to  remain  neutral  between  the  parties,  and  to  allow  to  each  the  same  rights  of 
"  asylum,  and  hospitality  and  intercourse.  Each  party  is,  therefore,  deemed  by  us,  a 
"  belligerent  nation,  having,  so  far  as  concerns  us,  the  sovereign  rights  of  war,  and  en- 
"  titled  to  be  respected  in  the  exercise  of  those  rights."  Is  it  not  clear,  that  this  main- 
tains the  proposition  I  hold,  and  not  the  one  for  which  the  Attorney  cites  it  ?  The 
ground,  and  the  only  ground,  upon  which  the  right  of  the  Independencia  to  be  esteemed 
a  belligerent,  in  the  ports  of  the  United  States,  or  elsewhere,  was  placed,  was  the  ante- 
cedent recognition  of  the  civil  war  between  Buenos  Ayres  and  Spain  by  the  United 
States.  It  was  on  that  account,  or,  to  use  the  language  of  the  court,  "  therefore"  it  was 
because  of  that  fact,  and  that  only,  that  Buenos  Ayres  was  to  be  considered  as  belli- 
gerent. It  obviously  never  entered  the  mind  of  the  Court,  to  place  the  right  upon  the 
fact  of  the  civil  war  itself,  but  exclusively  upon  its  recognition  by  our  government. 
This,  if  possible,  is  made  the  more  apparent,  by  a  subsequent  case  decided  at  the  Mass- 
achusetts Circuit  in  1S38,  by  Mr.  Justice  Story,  the  Judge  by  whom  the  opinion  of  the 
Supreme  Court,  just  referred  to,  was  delivered.  I  refer  to  the  case  of  Williams  and  the 
Suffolk  Insurance  Company,  3d  Sumner,  270.  In  that  case,  two  American  vessels,  the 
Harriet  and  the  Breakwater,  had  gone  to  the  Falkland  Islands  on  a  sealing  voyage, 
and,  on  their  arrival  there,  were  seized  by  one  Louis  Vernet,  acting  as  governor  of  the 
islands,  under  the  authority  of  Buenos  Ayres.  The  former  was  carried  to  Buenos  Ayres. 
and  there,  under  legal  proceedings,  condemned,  the  latter  was  recaptured  by  her  mate 
and  crew,  who  were  left  on  board  with  the  prize  crew,  and  was  brought  to  the  United 
States,  where  she  was  libelled  for  salvage.  The  ground  taken  against  the  claim  was 
that  the  islands  belonged  to  Buenos  Ayres  as  a  part  of  her  dominion,  and  that  she  had 
the  sole  jurisdiction  to  regulate  and  prohibit  the  seal  fishery,  and  confiscate  vessels  il- 
legally engaged  in  it.  The  United  States  had  recognized  the  Government  of  Buenos 
Ayres.  That  government  had  always  asserted  title  in  the  islands,  but  that  title  the 
United  States  had  not  acknowledged,  and  they,  the  islands,  were  originally  a  dependency 
of  Spain.  On  these  facts  the  Court  held,  that  although,  when  Buenos  Ayres  separated 
from  Spain,  she  might  have  (in  fact  she  did)  claimed  the  sovereignty  also  of  the  islands, 
as  an  appendage  to  her  own  dominion,  still,  "  that  claim,  unless  enforced  by  an  actual 
"  possession  and  a  full  recognition  by  other  nations,  could  in  no  just  sense,  be  deemed  to 
"  give  a  fixed  title,"  and  that  although  Buenos  Ayres  had  "  undoubtedly  been  recognized 
"  by  the  Government  of  the  United  States  as  an  independent  government,"  such  recog- 
nition could  by  no  means  be  extended  to  an  admission  of  its  title  to  the  sovereignty  of 
the  Falkland  Islands,  unless  some  act  of  the  government  could  be  shown  which  carried 
it  (that  recognition)  to  that  extent. 

Here  again  is  the  necessity  of  recognition  maintained,  as  the  only  ground  on  which  a 
revolutionary  attempt  to  change  a  government  can  be  placed  so  as  to  create  between 
the  revolutionists  and  other  nations  reciprocal  rights  and  obligations.  Such  a  change 
to  such  an  end,  requires  the  assent  of  other  nations.  This  wanting,  in  whole  or  ID  part, 


110 


the  new  candidate  for  admission  into  the  national  family  remains,  in  whole  or  in  part,  out- 
side of  it,  -whilst  the  original  government  continues  to  be  esteemed  as  still  within  it,  and 
entitled  to  all  its  original  lights,  and  bound  by  all  its  original  obligations.  A  case  subse- 
quently occurred,  in  which  the  doctrine  was  again  distinctly  announced  by  Mr.  Chief  Justice 
Taney,  speaking  for  the  Supreme  Court,  and  in  terras  plainly  applicable  to  the  one  before 
me.  I  mean  the  case  of  Kennett  et  al.  v.  Chambers,  14  Howard,  38,  decided  in  1852.  The 
question  there  was  as  to  the  validity  of  an  agreement,  entered  into  within  the  United  States, 
for  the  raising,  arming,  and  equipping  volunteers  for  Texas.  At  the  time  Texas  had  declar- 
ed herself  independent,  the  civil  authority  of  Mexico  had  been  expelled,  its  invading  army 
defeated,  its  chief  captured,  and  all  present  power  to  control  the  newly  organized  govern- 
ment of  Texas  annihilated,  as  was  recently  after  (the  23d  December,  1836)  announced 
by  our  Executive,  in  a  message  to  the  Senate.  But  her  independence  "  had  not  then 
been  acknowledged  by  the  United  Slates"  And  because  of  that  circumstance,  and  that 
alone,  the  Court  ruled  the  agreement  to  have  been  void.  They  held,  that  the  citizen  of 
the  United  States  was  bound  to  consider  the  Government  of  Mexico  as  still  subsisting 
in  Texas,  until  the  executive  or  legislative  department  of  his  government  should  declare 
otherwise,  and  that  the  Courts  of  the  United  States  were  equally  bound,  until  that  event, 
"  to  consider  the  ancient  order  of  things  as  remaining  unaltered."  Nor  was  the  doctrine 
then  new  to  that  Court,  but,  as  stated  by  the  Chief  Justice,  it  had  been  so  settled  in  the 
prior  cases  of  Rose  v.  Hirnely,  4  Cra.,  272,  and  Hoyt  v.  Gelston,  3  Wheat.,  324,  and 
maintained  by  the  English  tribunals.  It  will  also  be  seen  Mr.  Wheaton,  in  his  "  Ele- 
ments of  International  Law,"  gives  it  as  a  part  of  the  general  national  law.  He  says  : 
"  Until  the  independence  of  the  new  State  has  been  acknowledged,  either  by  a  foreign 
"  state  where  its  sovereignty  is  drawn  in  question,  or  by  the  government  of  the  country 
"  of  which  it  was  a  province,  courts  of  justice  and  private  individuals  are  bound  to  con- 
"  sider  the  ancient  state  of  things  as  remaining  unaltered."  (Part  1,  ch.  2,  s.  10.)  In  a 
word,  as  far  as  my  research  has  gone,  and  it  has  been  as  complete  as  I  could  make  it,  I 
can  find  no  other  doctrine  maintained  by  government  or  jurist.  But  conceding  that  the 
doctrine  is  not  as  well  settled  and  universally  as  applicable  as  I  think  it  to  be,  yet  this, 
at  least,  would  seem  to  be  past  all  possible  doubt,  that  in  such  a  rebellion — a  domestic 
war,  such  as  existed  in  Peru  at  the  period  when  the  vessels  in  question  were  seized — 
however  true  it  may  have  been  that  their  compliance  with  the  actual  regulations  of  the 
port  which  they  entered  (inconsistent  as  they  were  with  the  legitimate  regulations) 
would  not  have  subjected  them  to  censure  or  confiscation,  at  the  instance  of  Peru — it 
cannot  be  true,  that  by  such  compliance,  voluntarily  made,  the  masters  or  their  owners, 
could  acquire  title  to  properly,  clearly  belonging  to  that  government. 

Justification  or  apology,  from  compulsory  obedience  to  the  actual  power  they  found  there, 
and  which,  as  they  knew  or  were  bound  to  have  known,  had  never  been  recognized  by 
the  United  States,  is  one  thing;  but  the  voluntary  acquisition  of  treasure,  belonging  to 
the  government,  through  contracts  with  such  power,  is  altogether  a  distinct  thing.  And 
such  compulsory  obedience  is  also  entirely  distinguishable  from  a  designed  violation  of 
the  laws,  civil  and  criminal,  of  the  legitimate  government.  The  United  States  never  having 
acknowledged  the  legal  existence  of  the  actual  authority,  but,  on  the  contrary,  having 
continued  to  treat  with  the  original  government,  as  the  only  Government  of  Peru,  as  if 
no  civil  struggle  had  occurred  to  her,  their  citizens  could  not  be  in  a  condition,  by  any 
purposed  act  of  their  own,  rightfully  to  acquire  title  in  the  property  of  the  government, 
by  contract  with  any  self-constituted  adverse  authority,  and  in  disregard  to  the  known 
laws  of  the  true  owner.  Compulsory  compliance  with  the  orders  of  said  authority,  Peru 
would  have  no  right  to  complain  of,  much  less  punish  ;  but  to  make  a  voluntary  com- 
pliance and  agreements,  entered  into  by  means  of  and  upon  the  faith  of  such  compliance,  the 
foundation  of  title  to  the  governmental  property  of  Peru,  is  as  unfounded  in  any  principle 
of  national  law,  as  it  is  offensive  to  the  commonest  sense  of  justice.  Commerce  so  car- 


Ill 


ried  on  is  not,  with  reference  to  Peru  or  the  United  States,  a  legitimate  commerce.  It 
would,  on  the  contrary,  be  a  defiance  of  the  authority  of  Peru,  and  a  known  breach  of 
the  laws  which  she  had  the  right  to  establish,  as  a  sovereign  nation,  binding  upon  all  the 
world,  and  in  no  sense,  therefore,  could  it  be  considered  as  legitimate.  It  was,  to  be 
sure,  in  one  sense,  enterprise,  and  commercial  enterprise;  but  it  was  enterprise  forbidden 
by  law  and  honesty — an  outrage,  and  a  known  outrage,  upon  the  authority  and  rights  of 
a  nation  with  whom  the  United  States  were  at  peace,  and  upon  the  most  friendly  rela- 
tions, sanctioned  and  secured  by  treaties,  and  should  therefore  receive  the  decided  cen- 
sure of  our  government,  instead  of  its  protection.  And  I  am  gratified,  though  not  surprised, 
to  know  that  in  this  view  such  conduct  has  been  held  by  two  other  nations,  the  only  na- 
tions except  our  own  whose  subjects  have  engnged  in  such  illicit  traffic.  The  French  con- 
sular agent  at  Iquiqne  was  the  charterer  of  the  Lizzie  Thompson,  and  his  cargo  being  in 
port  laden  at  the  time  she  was  seized,  he  applied  for  redress  to  the  French  Charge  d'Af- 
faires  at  Lima.  That  officer  promptly  and  properly  informed  him,  that  as  he  had  volun- 
tarily engaged  in  an  unlawful  trade,  he  must  take  the  consequences,  and  that  in  making 
the  seizure,  Peru  had  but  exercised  a  perfect  and  indisputable  right ;  arid  he  also  directed 
him,  because  of  his  misconduct,  at  once  to  surrender  his  official  position.  This  letter  of 
the  Charge  was  communicated  to  the  Minister  of  Foreign  Affairs  of  Peru.  The  same 
capturing  vessel  of  Peru  captured  at  the  same  time,  and  for  the  same  cause,  several 
Chilian  vessels  ;  and  that  government,  on  being  applied  to  by  the  owners,  also  refused 
interference,  and  upon  the  like  ground — the  clear  lawfulness  of  the  captures ;  and  this 
decision  was  communicated  to  the  Peruvian  Minister  in  Chile.  I  cannot  but  hope  and  be- 
lieve that  a  more  careful  consideration  of  the  question  will  in  the  end,  and  at  an  early 
day,  lead  the  Government  of  the  United  States  to  the  same  result.  Deeply  interested  in 
maintaining  its  own  rights,  and  the  continuing  integrity  of  its  own  power  over  every 
part  of  the  Union,  it  should  be  the  last  to  sanction  conduct  which  may  hereafter  prove 
so  mischievous  to  its  own  honor  and  welfare  ;  and,  above  all,  should  it  be  its  pride,  as  it  is 
its  duty,  to  show,  by  its  own  example,  that  whilst  guarding  itself  from  the  pernicious  ef- 
fect of  inadmissible  and  perilous  principles  of  national  law,  it  should  scrupulously  avoid 
asserting  them  in  its  intercourse  with  the  other  nations  of  the  world. 

I  have  the  honor  to  be,  with  high  regard,  your  Excellency's  obedient  servant, 

REVERDT  JOHNSON. 

Lyndhurst,  near  Baltimore,  24th  July,  1858. 


NEW  YORK,  December  2d,  1858. 

The  undersigned,  Minister  of  Peru,  has  the  honor  to  acknowledge  the  receipt  of 
the  note  from  his  Excellency  the  Hon.  Secretary  of  State  of  the  United  States,  dated 
the  29th  ultimo,  and  of  the  accompanying  copy,  also  kindly  transmitted  to  him,  of 
a  despatch  addressed  by  His  Excellency,  with  date  of  November  26th,  to  the  Honor- 
able Minister  of  the  United  States  in  Peru,  on  the  cases  of  the  ships  Lizzie  Thomp- 
son and  Georgiana,  which  are  now  the  subject  of  a  controversy  between  the  two 
governments. 

The  Honorable  Secretary  of  State  wishes  that  the  undersigned  should  receive  the 
copy  of  such  despatch  as  the  reply  to  the  note  he  had  the  honor  of  addressing  to 
His  Excellency  on  the  date  of  August  4th,  and  expresses  the  determination  of  the 
Cabinet  of  Washington  to  settle  the  questions  raised  with  Peru  by  the  mentioned 
cases,  through  the  Honorable  Mr.  Clay. 

The  undersigned,  according  to  the  wishes  of  the  Honorable  Secretary  of  State, 
accepts,  as  a  reply  to  his  said  note,  the  despatch  addressed  to  Mr.  Clay,  and  accepts 


112 


it  with  all  the  good  will  with  which  he  is  inspired  by  the  conviction  that,  by  adopt- 
ing such  indirect  means  of  replying,  His  Excellency  did  not  mean  to  indicate  the 
existence  of  any  objection  to  the  person  of  the  undersigned,  whose  conduct  in  this 
case,  as  in  all  his  long  official  relations  with  the  State  Department,  has  been  charac- 
terized by  the  same  spirit  of  loyalty,  friendship,  and  respect,  which,  from  the  estab- 
lishment of  her  independence  to  the  present  day,  has  guided  Peru  in  her  intercourse 
with  the  United  States. 

The  undersigned  very  sincerely  regrets  that  the  Honorable  Secretary  of  State 
could  not  find  correct  the  conclusions  contained  in  the  former's  note  of  August  4th, 
which  he  founded  on  the  authorities  therein  quoted ;  and  it  seems  to  him,  that  in 
the  state  of  the  question  now,  the  moment  has  arrived  for  him  to  fulfil  in  their 
entirety  the  special  instructions  received  from  his  government  on  the  matter. 

Accordingly,  he  has  the  honor  of  declaring  to  the  Honorable  Secretary  of  State, 
that  the  Government  of  Peru  is  ready  simply  to  submit  the  question  raised  by  the 
capture  of  the  ships  Lizzie  Thompson  and  Georgiana  to  the  decision  of  any  Euro- 
pean nation,  whatever,  and  to  leave  to  His  Excellency  the  President  of  the  United 
States,  the  choice  of  such  power,  as  well  as  the  prefixing  of  the  time  for  carrying 
the  thing  into  effect. 

The  undersigned  has  no  doubt  that  these  means,  the  most  just  and  equitable 
that  could  be  chosen  in  the  circumstances,  between  two  nations  united  by  the  ties 
of  sincere  amity  and  mutual  respect,  will  be  accepted  by  the  Government  of  the 
United  States ;  and  in  this  confidence,  he  avails  himself  of  the  opportunity  for 
renewing  to  His  Excellency  the  Honorable  Secretary  of  State  the  assurances  of  his 
most  distinguished  consideration. 

(Signed)  JUAN  I.  DE  OSMA. 

To  His  Excellency  the  Secretary  of  State 
of  the  United  States,  "Washington. 


Mr.  De  Osma,  Minister  resident  of  the  Republic  of  Peru,  has  submitted  to  me 
the  message  of  the  President  to  the  Senate  of  the  United  States  of  the  8th  day  of 
June,  1858,  with  the  accompanying  documents,  including  the  note  of  Mr.  De  Osma 
to  the  Secretary  of  State  of  the  27th  of  March,  1858,  the  reply  of  the  Secretary  of 
the  22d  of  May,  1853,  and  the  opinion  of  the  Attorney-General  of  the  15th  of  May, 
1858 ;  also  the  note  of  Mr.  De  Osma  of  the  4th  of  August,  1858,  and  the  opinion 
of  Reverdy  Johnson,  Esquire ;  and  has  requested  my  professional  opinion  upon 
the  questions  involved,  touching  the  seizure  and  detention  by  the  Peruvian  Gov- 
ernment of  the  American  vessels,  the  Georgiana  and  the  Lizzie  Thompson,  on  the 
24th  of  January,  1857,  and  the  reclamations  made  by  the  Government  of  the 
United  States. 

I  have  given  to  these  inquiries  a  very  careful  attention  ;  and,  after  the  maturest 
consideration,  think  that  under  the  circumstances  disclosed  in  those  documents,  the 
seizure  and  detention  of  the  vessels  named,  by  the  authorities  of  Peru,  were  fully 
authorized ;  and  that  there  is  no  just  foundation  for  the  reclamations  preferred  on 
behalf  of  their  owners. 

This  conclusion  rests,  as  I  suppose,  upon  principles  long  and  well  established, 
having  the  sanction  of  the  authority  of  publicists  of  acknowledged  reputation,  and 
acted  upon  by  reiterated  decisions  in  the  Supreme  Court  of  the  United  States. 


113 


To  these  decisions  it  is  unnecessary  that  I  should  refer.  They  have  been  ex- 
amined and  discussed  in  the  note  of  Mr.  De  Osma,  and  in  the  opinion  of  Mr.  John- 
son. A  review  of  them  by  me  would  amount  only  to  a  repetition  of  what  has 
been  already  well  said.  I  content  myself  with  expressing  my  entire  concurrence  in 
Mr.  Johnson's  opinion. 

The  principles  regulating  the  relations,  obligations,  and  responsibilities  of  gov- 
ernments de  facto  and  governments  de  jure,  I  had  occasion,  in  an  official  note  ad- 
dressed to  Prince  Cassaro,  the  Minister  of  Foreign  Affairs  at  Naples,  dated  on  the 
29th  day  of  June,  1832,  particularly  to  examine.  They  were  applied  on  that  case 
to  the  acts  of  a  government  not  only  in  the  exclusive  possession  of  the  territory, 
but  exercising  all  the  functions  of  a  regularly  organized  community,  and  recognized 
as  such  by  other  powers.  (That  note  may  be  found  in  Senate  Documents,  2d  Sess. 
22d  Cong,  Doc.  70.)  Those  principles  I  still  believe  to  be  sound;  but  to  maintain 
that  the  authority  of  a  regular  government  may  be  superseded  by  the  temporary 
seizure,  by  violence  of  an  insurrectionary  force,  of  a  portion  of  the  public  territory, 
and  that  such  possession  gives  to  the  seizers  the  character  and  authority  of  a  gov- 
ernment, though  without  any  of  its  attributes;  and-  that  citizens  of  friendly  powers, 
maintaining  diplomatic  relations  with  such  regular  government,  may  countenance 
and  deal  with  such  insurrectionary  force,  and  violate  with  impunity  the  established 
and  known  laws  of  the  country,  is,  in  my  judgment,  to  do  violence  to  consecrated 
principles  of  international  law. 

Nor  do  I  believe  that  it  can  with  propriety  be  asserted,  that  even  in  a  case  of 
acknowledged  civil  war,  its  existence,  and  the  obligations  and  responsibilities  it 
imposes,  are  matters  to  be  ascertained  by  the  private  citizens  of  foreign  govern- 
ments. This  duty  and  authority  belong  to  those  governments  themselves,  having 
charge  of  their  foreign  relations,  and  not  to  speculating  adventurers.  A  different 
doctrine,  as  it  strikes  me,  would  be  pregnant  with  the  most  mischievous  conse- 
quences ;  and  I  speak  with  confidence  when  I  affirm,  that  the  whole  series  of  de- 
cisions, from  time  to  time  pronounced  by  the  Supreme  Court  of  the  United  States, 
will  be  found,  when  carefully  examined,  distinctly  to  negative  this  pre-eminently 
pernicious  principle. 

JOHN  NELSON. 

Baltimore,  December  13th}  1858. 


MINISTRY  OF  FOREIGN  RELATIONS  OF  PERU,  ) 
LIMA,  December  22d,  1859.  f 

The  undersigned,  Minister  of  Foreign  Relations  of  Peru,  has  the  honor  to  address 
His  Excellency,  the  Envoy  Extraordinary  and  Minister  Plenipotentiary  of  the 
United  States,  for  the  purpose  of  making  known  to  him  the  ultimate  and  definite 
resolution  which  the  Government  of  Peru  has  taken  respecting  the  demand  made 
by  the  American  Minister  for  indemnification  to  the  owners  and  outfitters  of  the 
American  ships  Lizzie  Thompson  and  Georgiana,  which  were  seized  by  the  Peru- 
vian war-steamer  Tamoes,  whilst  engaged  in  the  illicit  and  forbidden  guano  traffic 
at  Punta  de  Lobos  and  Pabellon  de  Pica. 

But  before  proceeding  further,  the  undersigned  considers  it  necessary  to  state  to 
His  Excellency  in  a  succinct  manner,  all  the  events  which  have  occurred  relative 
to  this  affair,  since  the  undersigned  became  charged  with  the  Ministry  of  Foreign 
15 


114 


Affairs,  on  which  occasion  he  appreciated,  in  all  its  importance,  the  grave  question 
arising  out  of  the  seizure  of  said  ships. 

His  Excellency  Mr.  Clay  should  recollect  that  on  the  first  official  visit  he  made 
to  the  undersigned,  the  llth  last  October,  he  expressed  the  desire  that  there  should 
be  a  prompt  settlement  of  all  matters  pending  between  the  United  States  Legation 
and  the  Peruvian  Ministry,  especially  that  relative  to  the  Lizzie  Thompson  and 
Georgiana.  His  Excellency  will  also  recollect  that  the  undersigned  was  full  of 
the  same  desire,  and  disposed  to  terminate  these  negotiations  in  as  friendly  and 
equitable  a  manner,  as  propriety  and  the  interests  of  Peru  would  admit,  while  he 
assured  his  Excellency  Mr.  Clay,  that  he  would  give  his  particular  attention  to  such 
matters  as  he  might  bring  forward. 

In  fact,  the  undersigned  examined  the  matter  with  great  care,  and  justly  scrutin- 
ized the  documents  relating  to  this  delicate  question,  well  understanding  that  it  was 
indispensable  to  know  the  value  of  the  captured  ships  and  their  appertenances, 
without  being  understood  that  by  favoring  such  a  course,  neither  the  undersigned 
or  his  government  recognized  any  right  to  present  a  claim,  nor  obligation  to  allow 
the  indemnity  demanded. 

The  undersigned  had  the  honor  to  thus  express  himself  to  His  Excellency  on  the 
occasion  of  his  second  visit,  and  to  represent,  furthermore,  that  the  period  of  several 
days  would  be  necessary  for  the  official  appraisement  of  the  appertenances  belong- 
ing to  said  vessels  when  they  arrived  in  the  port  of  Callao. 

The  day  following  the  aforesaid  visit,  the  undersigned  remitted  to  the  Com- 
mandant-General of  Marine,  not  only  the  inventories  that  had  been  made  up  by 
the  national  authorities  in  the  port  of  Callao,  but  also  those  delivered  by  the  cap- 
tains of  the  ships,  all  of  which  should  have  served  to  keep  His  Excellency  informed 
that  due  diligence  had  been  practiced. 

Whilst  awaiting  the  completion  of  the  appraisement,  the  undersigned,  to  his 
surprise,  received  the  official  note  from  His  Excellency  the  American  Minister,  in- 
sisting, in  a  forcible  manner,  to  know  what  determination  the  Peruvian  Government 
had  adopted  in  relation  to  the  matter ;  also  stating  that  it  would  be  desirable  to 
have  this  reply  before  the  sailing  of  the  next  semi-monthly  steamer. 

The  undersigned  cannot  refrain,  for  the  present  purpose,  to  make  to  His  Excel- 
lency Mr.  Clay,  those  just  observations  which  appertain  to  the  fact  of  his  having 
been  conformable  to  the  exercise  of  those  previous  exertions,  and  which  were  ne- 
cessary for  the  greater  enlightenment  of  Peru  and  the  exigency  that  demanded 
them. 

The  official  notes  under  date  of  2d  and  4th  of  November,  exchanged  for  this  pur- 
pose between  His  Excellency  and  the  undersigned,  contain  the  memoranda  of 
previous  interviews,  and  proves  the  constant  refusal  of  the  undersigned  to  enter 
into  the  merits  of  the  question,  or  to  promise  anything  respecting  the  same,  until 
the  inventories  which  had  been  requested  from  the  Comandante-General  of  the 
Marine  should  be  received. 

These  documents  having  been  obtained,  and  at  another  interview  between  His 
Excellency  and  the  undersigned,  the  American  Minister  stated  that  he  could  not 
enter  into  any  discussion,  as  his  instructions  on  this  point,  which  were  final,  pro- 
hibited him  from  doing  so,  the  undersigned  replied  that  Peru,  being  a  sovereign 
and  independent  nation,  had  the  right  to  determine  what  course  should  be  pursued 
in  order  to  arrive  at  a  settlement  of  the  question,  and  she  could  not  and  ought  not 
to  admit  the  principle  that  all  discussion  was  closed,  for  this  principle  is  nothing 


115 


more  nor  less  than  conceding  to  the  Government  of  the  United  States  unlimited 
rights  in  the  matter. 

At  subsequent  interviews  between  His  Excellency  Mr.  Clay,  and  the  under- 
signed, it  was  found  impossible  to  devise  any  means  by  which  the  conclusion  of 
the  pending  negotiation  could  be  facilitated,  because  the  Government  of  Peru  de- 
fended its  indisputable  rights  and  the  interests  of  its  Treasury,  and  the  American 
Minister  held  himself  confined  to  instructions  he  had  received  from  his  Government. 
Furthermore,  the  information  from  the  Commandante-General  of  Marine,  and  the 
appraisement  of  the  said  ships,  made  under  his  order  by  the  Captain  Don  Antonio 
de  la  Haza,  present  a  very  notable  difference  from  the  valuation  placed  upon  them 
by  their  captains  subsequent  to  the  seizure. 

At  this  stage  of  the  affair,  the  undersigned  suggested  to  His  Excellency  Mr. 
Clay,  that  he  should  have  an  interview  with  the  Vice-President  of  the  Republic, 
inasmuch  as  the  grave  importance  of  the  question  naturally  called  for  the  adoption 
of  every  available  means  for  the  settlement  of  the  affair  in  a  proper  and  convenient 
manner. 

This  conference  was  held  the  7th  of  that  same  month,  and  the  undersigned  be- 
lieves it  useless  to  refer  to  this  interview  in  the  present  note,  for  His  Excellency 
Mr.  Clay  well  knows  that  the  Vice-President  of  the  Republic  could  offer  nothing 
more  than  to  submit  the  question  to  an  especial  tribunal  of  the  Council  of  Ministers 
for  a  definite  solution. 

Long,  deliberate,  and  prudent,  was  the  discussion  in  this  respectable  body ;  every 
possible  measure  by  which  the  rights  of  Peru  could  be  reconciled  with  the  relations 
of  friendship  existing  between  her  and  the  American  Union  was  brought  forward, 
to  be  met  only  by  obstacles  to  the  satisfaction  of  these  conflicting  desires.  A  true 
appreciation  of  the  circumstances,  arising  from  prudential  counsels,  had  its  due 
weight  in  the  discussion  which  took  place. 

The  subject  being  exhausted,  and  after  a  laborious  examination  of  all  the  docu- 
ments presented,  the  council,  with  the  approbation  of  the  Vice-President,  charged 
with  the  executive  power,  declared  a  repetition  of  the  refusal  to  comply  with  every 
demand  for  indemnification  that  had  been  made  upon  the  Government  of  Peru; 
and  that  this  refusal  was  based  on  those  weighty  reasons  which  had  been  brought 
to  the  knowledge  of  the  American  Government  by  the  resident  Minister  in  Wash- 
ington, Don  Cipriano  Coronel  Zegarra,  in  his  conference  w^ith  His  Excellency  Gen. 
Cass,  on  the  14th  of  September  last.  Also,  that  none  of  the  dangerous  consequences 
that  may  result,  however  sad  they  may  be,  can,  in  any  manner,  change  the  firm  re- 
solve of  the  Peruvian  Government ;  and  finally,  that  the  seizure  of  the  vessels  Lizzie 
Thompson  and  Oeorgiana,  the  legal  proceedings  which  took  place  before  the  Court 
of  Confiscation,  the  condemnatory  sentence  which  fell  upon  them  and  the  sale  which 
followed  in  consequence,  are  legal,  unalterable,  and  do  not  in  any  manner  compro- 
mise the  Government  of  Peru. 

The  undersigned  believes  it  will  be  offensive  to  the  well  known  intelligence  of 
His  Excellency  Mr.  Clay,  should  he  reproduce  in  this  communication  the  abundant 
and  indestructible  reasons  which,  pending  the  dilatory  course  of  this  question,  have 
been  set  forth  by  the  Senor  Zevallos,  Minister  of  Foreign  Relations,  and  in  Wash- 
ington by  the  diplomatic  agents  of  Peru,  the  Senores  Osma  and  Zegarra,  The 
undersigned  also  believes  it  will  be  offensive  to  the  same  intelligence  of  His  Excel- 
lency Mr.  Clay,  should  he  repeat  in  writing,  the  principles  which  were  expressed 
by  him  in  conversation  at  their  last  conference  ;  but  he  cannot  excuse  himself  from 
calling  the  attention  of  His  Excellency  to  certain  events  which  have  recently 


116 


occurred,  the  simple  mention  of  which  will  be  sufficient  to  prove  that  the  Govern- 
ment of  Peru,  notwithstanding  the  conviction  of  the  justice  of  its  course,  has 
omitted  no  means  to  make  the  matter  understood  by  the  Government  of  the  United 
States,  that  every  pretext  for  offence  between  the  two  countries  might  disappear, 
and  a  friendly  satisfactory  result  be  attained. 

The  lengthy  discussion  which  took  place  between  Senor  Zevallos  and  His  Excel- 
lency Mr.  Clay,  when  the  Lizzie  Thompson  and  Georgiana  were  seized,  unfortunately, 
did  not  result  in  producing  any  satisfactory  mode  of  settlement,  and  the  Gov- 
ernment of  Peru  had  no  misgivings  in  referring  the  matter  to  its  diplomatic 
agent  in  Washington,  which,  in  effect,  was  done,  thus  giving  a  proof  of  confi- 
dence in  the  rectitude  of  the  United  States.  Not  having  obtained  the  end  desired 
by  this  course,  and  no  other  result  than  the  evident  determination  of  that  same 
government  to  render  effective  the  claim  for  indemnification  which  could  not  be 
qualified  by  any  just  or  legal  title,  it  proposed  yet  another  mode  of  settlement, 
acknowledged  by  all  nations  in  similar  cases,  and  even  accepted  under  special  cir- 
cumstances by  the  Cabinet  at  Washington.  The  mode  proposed  was  the  arbitra- 
tion of  some  respectable  power  like  Great  Britain,  from  whose  impartial  judgment 
justice  might  be  expected.  With  a  feeling  sufficiently  profound,  the  Government 
of  Peru  saw  that  the  United  States  always  refused  to  accept  this  honorable,  neces- 
sary, and  lawful  arbitration;  and  this  feeling  of  regret  was  greatly  increased,  inas- 
much as  this  refusal  caused  a  strong  suspicion  that  the  Government  of  the  United 
States  was  not  satisfied  of  the  justice  of  its  cause,  fearing  an  adverse  judgment  in 
the  arbitration  which  had  been  proposed.  Those  friendly  relations  which  Peru  has 
so  carefully  cultivated  with  the  United  States  do  not  meet  with  merited  recipro- 
city, since  Peru  is  refused  that  which,  in  a  similar  case,  was  conceded  not  long  ago, 
to  another  section  of  South  America. 

The  Government  of  Peru  went  still  further.  It  instructed  its  resident  Minister 
in  Washington,  Senor  Zegarra,  to  ascertain  whether  the  Government  of  the  United 
States  would  propose  a  proper  arbitration  which  would  evade  the  conflict  which 
this  question  might  occasion,  and  which  should  dissipate  the  fear  of  Peru  that  she 
has  not  that  consideration  which  by  right  is  her  due  as  a  friendly  state,  and  that 
the  justice  which  has  distinguished  her  proceedings  in  all  those  cases  of  reclamation 
which  have  been  presented  for  various  causes  heretofore,  is  not  recognized.  But, 
sad  to  relate,  General  Cass  only  proposed  an  arbitration  as  difficult  to  be  entertained, 
as  to  concede  the  indemnity  now  demanded.  It  was  proposed,  in  effect,  to  Senor 
Zegarra  that  the  affair  would  only  be  taken  into  consideration  on  the  immediate 
payment  of  the  indemnity,  said  act  of  payment  to  appear  as  the  voluntary  act  of 
the  Government  of  Peru ;  thus,  to  evade  the  most  important  principle,  and  the 
one  which,  more  than  all  others,  the  Government  of  Peru  desires  and  is  bound  to 
preserve.  This  proposition  compromises  that  principle,  since  the  payment  of  the 
indemnity  is  bound  up  in  it.  Such  an  act  would  seriously  prejudice  the  interests 
of  the  National  Treasury,  and  hazard  the  circumspection  and  respectability  of  the 
government  to  the  greatest  extent  imaginable  ;  and  which,  without  a  stable  system 
of  administration,  without  respect  to  laws  which  should  be  obeyed,  and  without 
any  consideration  for  its  proper  dignity,  seizes  contraband  guano  vessels,  sumbits 
them  to  the  competent  Court,  disposes  of  them  in  obedience  to  the  judgment  of  the 
tribunals,  and  immediately,  by  an  unusual  mode,  those  mandates  are  destroyed,  and 
the  violators  of  the  law,  who  have  been  submitted  to  a  legal  and  merited  judgment, 
are  voluntarily  recompensed  with  extravagant  sums  of  money  ! 

From  the  manner,  then,  that  Peru,  on  her  part,  has  avoided  no  possible  concilia- 


117 


tory  means  for  the  defence  of  her  rights,  it  appears  that  the  United  States,  on  their 
part,  have  never  failed  to  deny  them.  The  lengthy  discussion  in  this  capital  with 
His  Excellency  Mr.  Clay,  the  same  discussion  maintained  in  Washington  with  His 
Excellency  the  Secretary  of  State  ;  the  proposition  to  arbitrate  denied ;  a  recon- 
sideration of  the  affair,  and  extreme  propositions  made,  beyond  even  what  the  dig- 
nity of  a  government  or  the  honor  of  a  nation  can  permit,  have  only  served  to 
cause  such  a  repulse  as  is  contained  in  the  official  note  which  His  Excellency  Mr. 
Clay  addressed  to  the  undersigned  on  the  16th  of  the  present  month,  the  answer 
to  which  assured  His  Excellency  that  the  question  would  be  resolved  on  the  prin- 
ciple upon  which  he  had  called  it  up. 

In  the  adoption  by  the  Council  of  Ministers  of  the  definitive  resolution,  of  which 
mention  has  been  made  in  another  paragraph  of  this  despatch,  they  had  before 
them  also,  all  the  arguments  adduced  in  this  discussion,  and  the  undersigned  repro- 
duces them  for  the  better  enlightenment  of  Mr.  Clay,  and  the  vindication  of  the 
rights  of  his  country. 

The  vessels  Lizzie  Thompson  and  Georgiana,  rendered  themselves  culpable  not 
only  for  a  notorious  violation  of  the  neutrality  they  were  bound  to  observe,  but  for 
the  infraction,  already  proved,  of  the  fiscal  regulations  and  laws,  and  of  the  coasting 
trade  of  the  republic,  namely,  loading  guano  in  places  where  foreign  vessels  are 
prohibited  access. 

This  infraction  of  the  national  laws  obliged  the  government  to  turn  these  vessels 
over  to  the  Court  of  Confiscation,  that  justice  might  follow  in  all  legal  ways.  The 
vessels  were  condemned  to  public  judicial  sale,  the  product  of  said  sale  to  be  appro- 
priated to  the  captors,  who  are  officials  of  the  Peruvian  War  Marine. 

The  sentence  of  this  competent  tribunal  once  promulgated,  the  government  has 
no  power  to  alter  it.  According  to  the  Constitution  of  Peru,  the  government  is 
obliged,  under  a  heavy  responsibility,  to  comply  and  enforce  compliance  with  judicial 
judgments. 

The  Lizzie  TJiompson  and  Georgiana  facilitated  the  revolutionary  party  in  obtain- 
ing resources,  with  a  knowledge  of  the  risks  to  which  they  exposed  the  owners 
and  others  interested  in  the  vessels,  for  there  had  been  circulated  throughout  the 
republic,  in  anticipation,  a  law  of  Congress  which  declared  that  the  government 
would  not  be  responsible  for  any  injury  or  damage  which  those  foreigners  affording 
aid  to  the  said  revolutionists,  might  suffer.  This  law  of  the  4th  of  January,  1857, 
was  amplified  in  order  to  obtain  the  co-operation  of  the  Executive,  and  stating  the 
penalties  to  those  persons  charged  with  its  infraction. 

It  having  been  already  proved  by  the  predecessors  of  the  undersigned,  and  by 
the  diplomatic  agents  of  Peru  in  the  United  States,  that  the  Lizzie  Thompson  and 
Georgiana  merited  the  condemnatory  sentence  which  was  pronounced  against  them, 
the  undersigned  may  be  permitted  to  add,  that  whatever  might  be  the  acuteness 
and  wisdom  of  the  most  celebrated  jurist,  the  perfect  right  by  which  the  said  vessels 
were  seized,  tried)  and  condemned,  cannot  be  denied.  So  true  is  this,  that  the 
Government  of  the  United  States  and  its  enlightened  representative  in  this  capital 
in  demanding  indemnification,  have  not  been  able  to  call  in  question  the  legality  of 
the  judicial  proceedings,  and  derive  aid  only  from  the  assumption  that  at  the  time 
of  the  appraisement,  two  governments  existed  in  Peru — a  question  which  has  been 
much  discussed,  and  which  it  is  unnecessary  to  renew. 

The  undersigned  will  conclude  this  communication,  expressing  to  His  Excellency 
Mr.  Clay,  that  the  Government  of  Peru  believes  that  the  Government  of  the  United 
States,  appreciating  the  principal  facts,  will  relinquish  its  demand  for  indemnifica- 


118 


tion,  and  that  it  will  recognize  the  great  efforts  which  the  government  subscribed 
hereto  has  made ;  that  this  question  might  not  come  to  that  extreme  which  could 
produce  any  prejudicial  disagreement  between  Peru  and  the  United  States.  But 
in  any  event,  if  unfortunately  these  hopes  are  vain,  the  Government  of  Peru  will 
comply  with  its  sacred  obligations  to  protect  the  national  honor,  making  manifest 
the  rights  and  the  justice  by  which  she  is  sustained,  that  she  may  be  duly  appre- 
ciated by  all  the  civilized  nations  of  the  earth,  when  they  come  to  judge  of  the 
moderation  she  has  exercised  to  the  present  time,  as  they  will  have  to  judge  of  her 
determination  if,  unexpectedly,  the  conflict  should  come  which,  at  every  cost,  she 
has  endeavored  to  avoid. 

The  undersigned  reiterates  to  His  Excellency  Mr.  Clay,  sentiments  of  respect  and 
consideration. 

(Signed)  MIGUEL  DEL  CARPIO. 

To  His  Excellency  the  Envoy  Extraordinary  and  Minister  Plenipotentiary  of  the 

United  States. 


LEGATION  OF  THE  UNITED  STATES,  ? 
LIMA,  Dec.  23d,  1859.  J 

The  undersigned,  Envoy  Extraordinary  and  Minister  Plenipotentiary  of  the  United 
States  of  America,  has  had  the  honor  of  receiving  the  official  note  which  His  Ex- 
cellency the  Minister  of  Foreign  Relations  has  been  pleased  to  address  to  him,  under 
date  of  the  22d  of  the  present  month,  for  the  purpose  of  communicating  the  definite  and 
final  resolution  which  has  been  taken  by  the  Government  of  Peru,  not  to  admit  the  re- 
clamations which  have  been  presented  in  favor  of  the  owners  and  other  parties  interested 
in  the  ships  Lizzie  Thompson  and  Georgiana,  and  refusing  all  indemnity  for  the  capture 
and  condemnation  of  the  said  vessels. 

Before  proceeding,  the  undersigned  may  be  permitted  to  correct  a  mistake  which  His 
Excellency  has  made  in  the  resume  of  the  conversations  held  during  the  interviews  that 
have  taken  place  with  reference  to  the  said  cases.  His  Excellency  says,  that  "after  hav- 
ing obtained  said  documents  (the  inventories,  &c.  from  the  Commandant-General  of 
Marine),  and  in  another  interview  of  the  undersigned  (His  Excellency)  with  Mr.  Clay,  the 
latter  declared  that  he  could  not  enter  into  any  discussion  whatever,  because  his  instruc- 
tions were  positive,  and  prohibited  it." 

Taking  this  at  the  same  time  with  the  declaration  made  by  His  Excellency  in  the  pre- 
vious conference,  that  His  Excellency  could  not  enter  upon  the  discussion  of  the  question 
itself  until  some  light  was  thrown  upon  the  value  of  the  vessels  seized,  and  the  property 
found  on  board  of  them,  it  would  appear  as  if  the  undersigned  had  declined  all  negotia- 
tion, even  with  reference  to  the  value  of  the  vessels  and  property,  and  the  amount  that 
should  be  payable  to  the  owners  and  other  parties  interested,  as  indemnification  for  their 
seizure  and  the  losses  that  may  have  resulted  therefrom.  If  such  was  the  impression 
that  the  observations  made  by  the  undersigned  left  upon  the  mind  of  His  Excellency,  it 
was  erroneous. 

"What  the  undersigned  observed  to  His  Excellency  in  the  first  conference,  and  what  he 
repeated  in  the  subsequent  interviews,  was  that  he  considered  "all  discussion,  so  far  as 
regards  the  principles  involved  in  the  cases,  and  the  rights  of  those  who  claimed  indem- 
nification, as  terminated." 

But  that  he  was  ready,  in  case  the  reclamations  were  admitted  by  the  Government  of 
Peru,  to  enter  into  a  discussion  with  His  Excellency  upon  the  examen  of  the  inventories 
and  other  documents,  and  to  make  whatever  reduction  should  be  just  and  proper  in  the 
Bums  claimed." 


119 


It  is  true  that  the  undersigned  did  not  wish  to  open  a  discussion  upon  the  questions  of 
right  and  of  justice  involved  in  these  cases;  but  he  said  that  he  was  ready  to  commence 
an  examination  of  the  documents,  with  a  view  of  arriving  at  a  satisfactory  arrangement 
as  to  the  sum  that  should  be  payable  by  the  Government  of  Peru. 

Referring  to  the  note  of  His  Excellency,  the  undersigned  confesses  that  the  positive 
refusal  of  the  Government  of  Peru  to  enter  into  an  arrangement  of  these  reclamations, 
and  to  indemnify  the  aggrieved  owners  of  the  vessels  for  their  losses  in  consequence  of 
their  capture  and  illegal  condemnation,  has  surprised  him  somewhat ;  for,  considering 
the  assurances  that  His  Excellency  had  given  him  in  the  various  interviews  that  had  taken 
place,  the  same  as  His  Excellency  the  Vice-President  charged  with  the  executive  power 
of  the  Republic  on  the  7th  of  the  present  month,  of  his  desire  that  these  reclamations 
should  be  amicably  arranged,  the  undersigned  had  been  led  to  indulge"  himself  in  the 
hope  that  the  Government  of  Peru  would  accept  its  responsibility,  and  in  this  manner  a 
question  so  disagreeable  would  soon  be  terminated.  These  assurances,  however,  were 
not  in  keeping  with  the  declaration  that  the  Resident  Minister  of  Peru,  Don  Cipriano  C. 
Zegarra,  has  announced  as  having  made  to  the  Secretary  of  State  of  the  United  States> 
in  a  conference  which  took  place  in  Washington  on  the  14th  of  September  last  past,  and 
of  which,  if  it  realty  took  place,  His  Excellency  must  have  known  when  making  such  as- 
surances to  the  undersigned. 

His  Excellency  the  Minister  of  Foreign  Relations  informs  the  undersigned  that  the 
Government  of  Peru  has  adopted  this  declaration,  after  a  solemn  consultation  between 
His  Excellency  the  Vice-President  and  the  Council  of  Ministers,  and  that  it  is  in  effect 
that  the  Government  of  Peru  disregards  all  demands  for  indemnification  in  the  aforesaid 
cases;  and  that  none  of  the  hazardous  consequences  that  may  result,  however  lamenta- 
ble they  may  be,  will  induce  the  Government  of  Peru  to  change  its  firm  resolution  ; 
and  finally,  that  the  seizure  of  the  Lizzie  Thompson  and  Georgiana,  the  proceedings 
against  said  vessels  before  the  Judge  of  Confiscation,  the  decision  and  condemnation  pro- 
nounced against  thorn,  and  their  sale,  which  took  place  in  consequence,  are  It-gal,  unal- 
terable, and  do  not  compromise  in  any  manner  the  Government  of  Peru. 

Such,  then,  is  the  final  and  definitive  resolution  of  the  Peruvian  Government  upon 
the  demand  for  the  adjustment  of  the  cases  alluded  to,  as  communicated  officially  to  the 
undersigned  by  His  Excellency  the  Minister  of  Foreign  Relations  of  Peru. 

This  reply  is  so  positive  and  explicit  in  its  language  that  the  undersigned  does  not 
judge  it  necessary  to  reply  to  the  other  observations  contained  in  the  note  of  His  Excel- 
lency of  the  22d,  with  reference  to  the  capture  and  condemnation  of  the  vessels,  and  the 
notes  exchanged  between  those  who  have  preceded  His  Excellency  in  the  Ministry,  and 
the  undersigned,  and  between  the  Secretary  of  State  and  the  diplomatic  agents  of  Peru 
in  Washington. 

It  only  remains,  therefore,  for  the  undersigned  to  communicate  to  the  Secretary  of 
State  the  note  of  His  Excellency,  and  the  resolution  of  the  Government  of  Peru.  Ttis 
he  will  do  by  the  packet  of  the  27th  of  the  present  month,  and  will  await  new  instruc- 
tions from  the  Government  of  the  United  States.  He  does  this  with  regret,  for  he  is 
persuaded  that  this  refusal  on  the  part  of  Peru  will  greatly  affect  the  harmony  and 
amicable  relations  between  both  republics,  which,  as  well  the  undersigned  as  his  gov- 
ernment, have  always  desired  to  preserve  and  to  promote. 

The  undersigned  will  not  venture  to  say  what  may  be  the  measures  that  the  Govern- 
ment of  the  United  States  may  determine  to  take  under  these  circumstances ;  but  it  is 
certain  that  it  will  not  temporalize  nor  vacilatc  in  the  prosecution  of  these  reclamations 
to  an  equitable,  prompt,  and  complete  settlement.  His  government  has  a  clear  idea  of 
what  is  just,  and  has  always  been  guided  by  justice  in  its  international  relations  ;  but  in 
all  that  relates  to  its  rights  abroad,  it  knows  what  is  due  to  its  citizens,  and  it  will  extend 
to  them  ample  protection  whenever  they  may  have  suffered  an  evident  injustice  in  their 
persons  or  interests. 


120 


With  this  note,  the  undersigned  closes,  for  the  present,  his  correspondence  \vith  His 
Excellency  the  Minister  of  Foreign  Relations,  in  so  far  as  regards  the  cases  of  the 
before-mentioned  vessels. 

The  undersigned,  in  all  the  phases  of  the  negotiation,  has  made  the  greatest  efforts  to 
carry  the  reclamations  to  a  satisfactory  and  amicable  solution,  and  most  sincerely  deplores 
that  his  efforts  have  been  thus  far  unsuccessful. 

In  conclusion,  the  undersigned  has  the  honor  of  notifying  His  Excellency,  that  the 
United  States  will  consider  Peru  as  responsible  for  -whatever  other  damages  may  result 
to  the  parties  interested,  from  this  refusal  to  indemnify  them  for  the  seizure  and  con- 
demnation of  their  vessels,  and  for  all  the  consequences  that  may  result  from  this  resolu- 
tion of  the  Government  of  Peru. 

The  undersigned  avails  himself  of  this  occasion  to  offer  to  His  Excellency  the  Minister 
of  Foreign  Relations,  the  assurances  of  his  distinguished  consideration. 

J.  RANDOLPH  CLAY. 
To  His  Excellency  Seuor  Dr.  D.  MIGUEL  DEL  CARIMO, 

Minister  of  Foreign  Relations  of  Peru,  etc.,  etc. 


LEGATION  OF  THE  UMTED  STATES, 
LIMA,  June  6th,  I860. 

In  the  interview  that  took  place  yesterday,  the  undersigned,  Envoy  Extraordinary  and 
Minister  Plenipotentiary  of  the  United  States  of  America,  had  the  honor  of  expressing  to 
His  Excellency  the  Minister  of  Foreign  Relations  of  Peru,  the  sincere  regret  with  which 
the  Government  of  the  United  States  had  seen  that  all  its  efforts,  and  those  of  the 
undersigned  as  its  representative,  to  arrive  at  a  rational  and  mutually  equitable  arrange- 
ment of  the  difficulties  -which  have  arisen  with  regard  to  the  capture  and  confiscation  of 
the  ship  Lizzie  Thompson  and  the  bark  Georyiana,  have  been  frustrated  ;  and  finally, 
that  the  Government  of  Peru  insisted  in-  the  determination  not  to  indemnify  the  owners 
and  other  parties  interested  for  the  damages  and  loss  they  have  suffered  by  reaeon  of 
such  seizure.  The  undersigned  further  informs  His  Excellency  that  this  determination 
of  the  Peruvian  Government  must  be  considered  as  a  lack  of  friendly  feeling  towards  the 
United  States,  and  will  become  incompatible  with  the  continuance  of  those  cordial  re- 
lations which  it  had  always  been  desired  to  carefully  cultivate,  but  that  have  not  been 
correspondingly  met  with  equal  good  feeling  on  the  part  of  the  Government  of  Peru. 

Considering,  on  the  other  hand,  that  a  further  discussion  of  questions  that  have  al- 
ready been  exhausted  by  both  parties,  would  be  inefficacious,  and  would  only  result  in 
still  greater  asperity,  if  not  really  in  mutual  exasperation,  the  Government  of  the  United 
States  has  forwarded  instructions  to  the  undersigned  to  submit  the  following  propositions 
to  the  Peruvian  Government,  with  the  view^  if  it  be  possible,  of  arriving  at  a  definite 
arrangement  of  these  questions: 

1.  Will  the  Government  of  Peru  reconsider  the  decision  announced  in  the  note  ad- 
dressed by  His  Excellency  the  Minister  of  Foreign  Relations,  to  the  undersigned,  on  the 
22d  of  December,  1859  ;  will  it,  in  specific   terms,  recognize  its  responsibility  for  the 
seizure  and  confiscation  of  the  ship  Lizzie  Thompson  and  bark  Georgia-no,  zind  its  willing- 
ness to  enter  into  and  abide  by  an  equitable  arrangement  of  damages  and  loss  suffered  by 
the  owners,  captains,  and  crews  of  said  vessels? 

2.  Will  the  Peruvian  Government,  assenting  to  the  previous  proposition,  enter  into  a  con- 
vention for  the  appointment  of  a  mixed  commission  that  shall  not  only  decide  the  amount 
of  the  indemnification  that  may  justly  result  from  the  seizure  and  confiscation  of  the  afore- 
said vessels,  but  also  will  investigate  and  adjudicate  whatever  other  reclamations  of  the 


121 


citizens  of  the  two  republics  respectively  against  the  other,  may  be  now  pending  be- 
tween the  two  Governments  ? 

The  Government  of  the  United  States  presents  these  propositions,  animated  by  the 
friendly  spirit  which  has  always  characterized  its  relations  with  Peru,  and  in  submitting 
them,  the  undersigned  has  the  confident  hope  that  they  will  be  accepted  and  approved 
by  the  Peruvian  Government,  and  that  they  will  conduce  to  a  satisfactory  arrangement 
of  the  before-mentioned  questions. 

The  undersigned  avails  himself  of  this  occasion  to  reiterate  to  His  Excellency  the 
Minister  of  Foreign  Relations,  the  assurances  of  his  most  distinguished  consideration. 

J.  RANDOLPH  CLAY. 
To  His  Excellency  Senor  Dr.  D.  MIGUEL  DEL  CARPIO, 

Minister  of  Foreign  Relations  of  Peru,  &c.,  &c. 


MINISTRY  OF  FOREIGN  RELATIONS  OF  PJZRU,  ) 
LIMA,  Sept.  28,  1860.  f 

The  undersigned,  Minister  of  Foreign  Relations  of  Peru,  has  had  the  honor  of  receiv- 
ing the  appreciable  official  dispatch  which  His  Excellency  the  Envoy  Extraordinary  and 
Minister  Plenipotentiary  of  the  United  States  has  been  pleased  to  direct  to  him,  under 
date  of  June  5,  last,  with  the  object  of  communicating  to  him  that  he  had  received  in- 
structions from  the  Government  of  the  United  States  to  submit  to  that  of  Peru  the  fol- 
lowing propositions : 

Will  the  Government  of  Peru  reconsider  the  decision  announced  in  the  note  that  its 
Minister  of  Foreign  Relations  addressed  to  Mr.  Clay  on  the  22d  of  December,  1859  ?  Will 
it  in  specific  terms  recognize  its  responsibility  for  the  seizure  and  confiscation  of  the  ship 
Lizzie  Thompson  and  the  bark  Georgiana,  and  its  disposition  to  enter  upon  and  adhere 
to  an  equitable  arrangement  of  the  loss  and  damages  that  have  been  suffered  by  the 
owners,  captains  and,  crews  of  said  vessels  ? 

Will  the  Peruvian  Government  assent  to  the  foregoing  proposition,  and  enter  into  a 
convention  for  the  organization  of  a  mixed  commission  that  shall  decide  not  only  the 
amount  of  the  indemnity  that  shall  justly  result  from  the  seizure  and  confiscation  of 
these  vessels,  but  that  will  also  investigate  and  decide  whatever  other  reclamations  of 
the  two  republics  respectively  that  are  now  pending  between  the  two  governments  ? 

Before  transmitting  to  His  Excellency  Mr.  Clay  the  resolution  that,  with  regard  to 
the  foregoing  two  propositions,  has  been  taken  by  the  Government  of  Peru,  the  under- 
signed believes  it  necessary  to  state  in  this  dispatch  the  causes  which  have  delayed  until 
to-day  the  answer  asked  for  by  His  Excellency,  and  to  make  also  a  slight  record  of  the 
two  conferences  which,  at  the  solicitation  of  Mr.  Clay,  and  with  great  pleasure  to  the 
undersigned,  took  place  between  His  Excellency  the  President,  the  undersigned,  and  Mr. 
Clay,  with  regard  to  this  grave  and  delicate  question. 

With  reference  to  the  first,  His  Excellency  Mr.  Clay  is  aware  of  the  painful  occur- 
rence which  obliged  His  Excellency  the  Grand  Marshal  Castilla  to  deliver  the  supreme 
command  of  the  Republic  to  the  Council  of  Ministers,  in  order  to  attend  to  his  health, 
affected  by  the  horrible  attack  upon  his  person  committed  by  a  treacherous  assassin,  on 
the  2oth  of  July,  and  which  has  prevented  His  Excellency  from  entering  again  upon  the 
dispatch  of  public  business  until  the  1st  of  the  present  month  ;  and  as  His  Excellency 
the  Envoy  Extraordinary  and  Minister  Plenipotentiary  of  the  United  States  had  already 
solicited  and  obtained  from  His  Excellency  the  President  an  interview,  in  which  took 
place  the  first  of  the  conferences  referred  to,  the  Council  of  Ministers  could  not  occupy 
themselves  with  a  matter  thus  voluntarily  submitted  by  His  Excellency  Mr.  Clay  to  dis- 
cussion with  His  Excellency  the  President. 

16 


122 


It  is  with  pleasure  that  the  undersigned  refers  in  this  communication  to  the  full  and 
ample  explications  'which,  with  his  accustomed  loyalty,  were  made  by  His  Excel- 
lency the  President  to  Mr.  Clay,  in  the  conferences  which  took  place  the  23d 
of  July  and  to-day ;  explications  that  without  doubt  must  have  convinced  the  worthy 
representative  of  the  United  States,  that  if  the  Government  of  Peru  abounds  in 
friendly  sentiments  towards  that  of  the  United  States,  and  has  not  omitted  any  means 
whatever  of  proving  the  interest  it  feels,  that  the  relations  of  friendship  which  the  two 
countries  are  called  upon  to  cultivate,  may  be  strengthened  and  made  permanent;  it  is 
not  possible  for  it,  however  extensive  and  sincere  may  be  these  sentiments,  to  violate  the 
sacred  duties  which  it  owes  to  the  Nation,  which  has  confided  its  destinies  to  its  keeping, 
to  the  laws  of  the  country,  which  must  be  strictly  observed,  and  to  the  national  honor, 
which  must  be  respected,  whatever  may  be  the  sacrifice  that  this  may  impose. 

In  fact,  these  vessels,  the  Lizzie  Thompson  and  Georgiana,  having  been  submitted  to 
a  legal  proceeding,  judged  by  a  competent  tribunal  in  conformity  with  the  laws  of  the 
country,  and  condemned  after  all  the  proceedings  prescribed  by  the  laws  of  Peru  had 
been  observed,  the  government,  complying  with  the  political  constitution  of  the  Re- 
public, far  from  having  power  to  alter  the  decision  of  condemnation,  is  obliged  to  cause 
it  to  be  complied  with  and  respected,  for  reasons  which  have  been  fully  and  carefully  set 
forth  during  the  discussion  kept  up  for  two  years. 

But,  if  on  the  one  hand  this  proceeding  of  the  government  of  the  undersigned  ought 
to  be  considered  as  just  by  the  Government  of  the  United  States,  that  government  has 
seen,  on  the  other,  that  that  of  Peru,  in  a  spirit  of  equity,  has  never  refused  to  submit 
the  question  to  the  arbitration  of  a  respectable  power,  whose  decision  it  has  been  willing, 
as  it  is  now  willing,  to  comply  with  in  all  its  parts.  • 

It  is  not  to  be  expected,  from  the  rectitude  and  reputation  of  the  Cabinet  of  Washing- 
ton, that  it  will  insist,  when  there  still  remains  a  conciliatory  means,  used  by  all  nations, 
that  the  Government  of  Peru  shall  break  the  laws  of  its  country,  be  wanting  in  that  re- 
spect and  veneration  which  in  all  civilized  countries  guards  the  independence  of  the 
judicial  power,  and  that  the  same  Cabinet  of  Washington  will  carry  a  question  which 
does  not  affect  the  general  interests  of  the  republic  to  the  extreme  of  producing  a  con- 
flict which  may  be  decorously  avoided  by  simply  accepting  the  arbitration  proposed. 

In  order  not  to  extend  this  communication  to  too  great  length,  the  undersigned,  in 
referring  to  the  reasons  alleged  in  the  last  conference,  and  which  His  Excellency  Mr. 
Clay  will  recollect,  will  limit  himself  to  repeating  in  writing  the  assurances  which  were 
verbally  made  to  him  by  His  Excellency  the  President,  that  although  he  could  not  alter 
in  the  least  the  judgment  pronounced  against  the  Lizzie  Thompson  and  the  Georgiana, 
he  was  ready,  notwithstanding,  to  admit,  in  a  spirit  of  friendship  and  harmony,  the  arbi- 
tration of  such  nation  as  might  be  selected  by  the  Government  of  the  United  States,  or 
even  by  that  of  Great  Britain,  and  to  abide  by  the  decision  that  might  be  made,  what- 
ever it  might  be. 

With  respect  to  the  second  proposition,  the  Government  of  Peru,  disposed  always  to 
do  justice  to  foreigners  as  well  as  to  natives,  will,  with  pleasure,  submit  to  a  mixed 
commission,  all  the  reclamations  now  pending  on  the  part  of  North  American  citizens 
against  Peru,  and  of  Peruvian  citizens  against  the  United  States. 

This  commission  might  be  composed  of  two  commissioners  named  respectively  by 
each  government,  and  whose  decision  shall  be  without  appeal,  the  commissioners  selecting 
a  third  to  adjust  such  difference  as  may  occur  ;  and  hearing  two  advocates  equally  named 
by  the  two  governments,  who  shall  serve  as  attorneys  for  the  defence  of  the  rights  that 
may  be  involved. 

The  commission,  before  proceeding,  shall  classify  the  reclamations,  to  the  end  that 
those  pertaining  to  the  judicial  power  may  be  remitted  to  the  tribunal  to  which  they 
correspond,  that  they  may  there  be  resolved,  if  the  parties  interested  do  not  agree  to 
refrain  from  the  judicial  action,  and  submit  to  the  decision  of  the  mixed  commission. 


123 

By  this  means  the  government  of  the  undersigned  believes  that- the  demands  of  the 
Government  of  the  United  States  may  be  amicably  and  honorably  reconciled  with  the 
rights  and  justice  of  Peru ;  hoping,  not  without  foundation,  that  the  propositions  pre- 
sented by  His  Excellency  Mr.  Clay,  accepted  in  these  terms,  will  be  the  means  of  ter- 
minating the  pending  questions,  and  of  avoiding  complications  that  the  government  of 
Peru,  in  its  desire  to  preserve  the  best  relations  with  friendly  States,  does  not  fear  to 
submit  to  the  decision  of  the  enlightened  Cabinet  of  Washington,  with  equal  confidence 
as  to  its  own. 

The  undersigned  reiterates  to  His  Excellency  Mr.  Clay  the  sentiments  of  his  distin- 
guished consideration. 

(Signed)  JOSE  FABIO  MELGAR. 

To  His  Excellency  the  Envoy  Extraordinary  and 

Minister  Plenipotentiary  of  the  United  States. 


LEGATION  OF  THE  UNITED  STATES,  ) 
LIMA,  Oct.  2d,  1860.  f 

The  undersigned,  Envoy  Extraordinary  and  Minister  Plenipotentiary  of  the  United 
States  of  America,  had  the  honor  of  receiving,  on  the  29th,  the  note  of  His  Excellency 
the  Minister  of  Foreign  Relations  of  Peru,  dated  the  28th  of  last  month,  and  transmitting 
the  resolution  taken  by  the  Peruvian  Government  relative  to  the  two  propositions  pre- 
sented by  the  undersigned  in  his  note  of  the  5th  of  June  last. 

With  reference  to  the  first  of  these  propositions — that  the  Government  of  Peru  should 
recognize  its  responsibility  for  the  capture  and  condemnation  of  the  ship  Lizzie  Thomp- 
son and  the  bark  Georgiana,  and  should  agree  to  an  equitable  valuation  of  the  losses  and 
prejudices  suffered  by  the  owners,  masters,  and  crews  of  said  vessels — His  Excellency 
informs  the  undersigned  that,  notwithstanding  the  Peruvian  Government  and  His  Ex 
cellency  the  President  of  the  Republic  entertain  the  most  sincere  feelings  of  friendship 
towards  the  United  States,  and  that  they  have  not  omitted  any  means  of  manifesting 
their  desire  that  the  relations  of  friendship  should  be  permanent  between  the  two 
countries  ;  it  is  not  possible  to  transgress  those  sacred  duties  which  the  government  has 
to  fulfil  towards  the  nation  that  has  confided  to  it  its  destinies,  that  it  must  comply 
strictly  with  the  laws  of  the  country,  and  that  it  must  cause  the  national  honor  to  be 
respected,  whatever  the  sacrifice  may  be  that  this  may  exact. 

His  Excellency  the  Minister  of  Foreign  Relations  continues  afterwards,  affirming  de 
novo,  that  the  two  vessels  were  submitted  to  a  legal  trial,  before  a  competent  tribunal, 
in  conformity  with  the  laws  of  the  country,  and  condemned  after  all  the  forms  and  pro- 
ceedings had  been  observed  that  are  prescribed  by  the  laws  of  Peru ;  that  the  govern- 
ment, under  the  political  constitution  of  the  country,  far  from  having  the  power  to  change 
this  sentence  of  condemnation,  is  obliged  to  respect  and  to  comply  with  it,  for  reasons 
which  had  been  explained  fully  and  in  detail  in  the  two  conferences  which  took  place 
between  His  Excellency  the  President  of  the  Republic,  and  the  undersigned. 

And  His  Excellency  the  Minister  of  Foreign  Relations  reiterates  the  offer  made  by  His 
Excellency  the  President,  that  notwithstanding  that  His  Excellency  could  not  alter  in 
the  least  the  judgment  pronounced  against  the  Lizzie  Thompson  and  the  Georgians,  he 
was  still  ready,  however,  in  a  spirit  of  friendship  and  good  understanding,  to  enter  into 
a  convention  for  an  arbitration  by  such  nation  as  might  be  selected  by  the  United 
States,  or  by  Great  Britain,  giving  his  assent  to  whatever  decision  might  be  adopted  by 
such  nation. 

From  the  commencement  of  the  agitation  of  this  question  of  capture  of  the  two  ves- 
sels, although  the  undersigned  and  his  government  have  considered  that  they  were  il- 


124 


legally  captured,  and  that,  as  a  consequence,  the  proceedings  against  them  were  equally 
illegal,  the  undersigned  has  not  omitted  any  effort,  and  has  employed  all  the  arguments 
that  he  could  devise,  in  order  to  arrive  at  a  satisfactory  adjustment  of  this  business. 

He  experiences,  therefore,  the  most  profound  regret  that  the  Government  of  Peru  has 
resolved  to  refuse  the  first  proposition,  and  that  it  will  not  admit  its  responsibility  in 
the  premises ;  and  his  regret  is  the  greater  because  he  cannot  accept  the  alternative  pro- 
posed by  His  Excellency  the  President  of  the  Republic,  of  submitting  the  cases  of  the 
Lizzie  Thompson  and  the  Georgiana  to  the  arbitration  of  Great  Britain  or  of  any  other 
friendly  power. 

The  same  proposition  of  arbitration  was  made  to  the  Secretary  of  State  by  Mr.  Osma, 
Minister  Resident  of  Peru,  and  was  repeated  by  Mr.  Zegarra,  accredited  in  the  same 
capacity  to  Washington,  and  was  formally  refused  by  the  Government  of  the  United 
States ;  consequently  it  is  impossible  for  the  undersigned  to  accept  it,  and  therefore,  so 
far  from  the  Government  of  Peru  offering  any  satisfactory  arrangement,  a  rupture  in  the 
diplomatic  relations  between  the  two  countries  is  inevitable. 

The  undersigned,  animated  by  the  most  vehement  desire  to  prevent  such  an  extremity, 
had  the  honor  of  submitting  to  His  Excellency  the  President  of  the  Republic,  in  the  con- 
ference which  took  place  on  the  28th  of  last  month,  the  following  proposition,  substitut- 
ing it  for  the  two  propositions  before  mentioned,  and  to  serve  as  the  basis  of  a  conven- 
tion between  the  two  republics— to  wit: 

"  That  Peru  (that  is  to  say  its  Government)  will  deliver  to  the  United  States  an  adequate 
sum  (una  sumo,  considerable)  as  full  liquidation  for  all  of  the  reclamations,  actually  pend- 
ing before  it,  of  citizens  of  the  United  States — the  amount  of  said  sum  to  be  determined 
and  fixed  by  a  mixed  commission  that  shall  be  nominated  and  organized  by  the  respect- 
ive governments,  which  commission  shall  also  investigate  and  adjucate  the  reclamations  of 
citizens  of  Peru  now  actually  pending  before  the  United  States." 

This  proposition,  in  the  judgment  of  the  undersigned,  is  both  just  and  equitable,  and 
in  submitting  it  to  the  Peruvian  Government  the  undersigned  has  the  honor  to  inform 
His  Excellency  the  Minister  of  Foreign  Relations  that  he  will  await  until  6  o'clock  of 
the  afternoon  of  Saturday  next,  the  6th  instant,  a  categorical  reply. 

If  none  of  these  propositions  are  accepted  within  this  time,  the  undersigned  will  be 
compelled  to  ask  his  passports,  and  suspend  diplomatic  relations  between  the  two  re- 
publics. 

But  the  undersigned  still  entertains  the  hope  that  the  Government  of  Peru  will  not 
place  him  in  the  necessity  of  taking  this  step,  not  only  on  acconnt  of  the  injuries  that 
will  result  from  the  same  to  the  national  interests  of  the  two  countries,  but  also  from  the 
moral  effect  that  will  be  produced  by  its  future  consequences,  because  the  amicable  rela- 
tions now  existing,  once  interrupted,  it  will  be  ditficult  to  reestablish  them  upon  the 
same  footing  of  intimacy  and  cordiality. 

The  undersigned  has  the  honor,  in  this  conjuncture,  of  offering  to  His  Excellency  the 
Minister  of  Foreign  Relations,  the  renewed  assurances  of  his  most  distinguished  con- 
sideration. 

J.  RANDOLPH  CLAY. 
To  His  Excellency  D.  JOSE  FABIO  MELGAE, 

Minister  of  Foreign  Relations  of  Peru. 


125 


MINISTRY  OF  FOREIGN  RELATIONS  OF  PERU,  ) 
LIMA,  Oct.  6th,  I860.  j" 

The  undersigned,  Minister  of  Foreign  Relations  of  Peru,  has  the  honor  of  replying  to 
the  official  dispatch  which,  under  the  date  of  the  2d  instant,  His  Excellency  the  Envoy 
Extraordinary  and  Minister  Plenipotentiary  of  the  United  States  has  been  pleased  to 
direct  him,  "  for  the  purpose  of  informing  the  Government  of  the  Republic  that  if  within 
the  term  of  six  days  it  shall  not  declare  that  it  is  willing  to  pay  a  specific  sum  (una  swna 
considerable)  in  settlement  of  all  the  reclamations  of  the  United  States,  His  Excellency 
Mr.  Clay  will  be  compelled  to  ask  his  passports,  and  to  suspend  diplomatic  relations  be- 
tween the  two  republics." 

The  regret  of  the  undersigned  is  not  less  than  that  expressed  by  Mr.  Clay,  at  the  adop. 
tion  of  this  extreme  measure,  very  foreign,  in  truth,  to  those  relations  of  friendship  and 
good  understanding  which,  up  to  the  present  time,  have  existed  between  Peru  and  the 
United  States,  and  this  feeling  is  augmented  by  the  reflection  that  the  enlightened  Gov- 
ernment represented  by  Mr.  Clay  has  refused,  without  any  plausible  reason,  the  arbitra- 
tion that  solely,  in  a  spirit  of  equity,  and  for  the  furtherance  of  good  relations,  was  pro- 
posed by  the  Government  of  Peru,  in  the  confidence  that  the  Government  of  the  United 
States  would  accept,  in  this  instance,  the  same  means  they  had  recently  adopted  in  a 
similar  case  with  another  of  the  South  American  States. 

Before  making  the  intimation  contained  in  the  dispatch  of  His  Excellency  Mr.  Clay, 
referred  to,  it  should  have  been  requisite  that  all  the  conciliatory  measures  should  have 
been  exhausted  which,  in  international  law,  and  in  the  practice  of  civilized  nations,  are 
known  and  used  to  prevent  the  conflicts  and  the  great  injuries  that  always  attend  the 
interruption  of  diplomatic  relations  between  two  countries. 

If  the  judgment  which  the  government  of  the  United  States  has  formed  with  refer- 
ence to  the  capture  of  the  ships  Lizzie  Thompson  and  Cfeorgiana,  is  contrary  to  that 
which  with  reference  to  this  act  has  been  formed  not  only  by  the  Government  of  Peru, 
but  also  by  its  tribunals  of  justice,  and  which  has  merited  also  the  respectable  confirma- 
tion of  the  enlightened  Government  of  France  and  of  the  prudent  Cabinet  of  Chili ;  if 
a  discussion  sustained  for  two  years  in  order  to  discover  on  which  side  is  justice,  has 
not  produced  any  result  towards  terminating  this  unfortunate  difference ;  if,  in  fine, 
neither  the  Government  of  Peru  nor  that  of  the  United  States  can  by  themselves  reach 
a  satisfactory  solution,  why  should  they  yet  resort  to  unfriendly  measures  when  there 
still  remains  a  means  of  a  pacific  character  that  is  admitted  and  is  frequently  employed 
for  the  desirable  purpose  of  preventing  conflicts  between  two  countries  ? 

Why  should  such  a  means  be  selected  in  a  case  which  has  its  origin  neither  in  offences 
against  the  national  honor  nor  in  an  attack  upon  great  public  interests,  but  simply  and 
exclusively  in  the  private  interests  of  a  few  individuals  ? 

So  decisive  and  peremptory  is  the  intimation  that  His  Excellency  Mr.  Clay  has  made 
to  the  Government  of  Peru,  that  the  undersigned  would  have  abstained  from  making  the 
foregoing  observations,  if  it  were  not  proper,  as  it  really  is,  to  manifest  again  the  concil- 
iatory spirit  which,  even  in  the  present  extreme  case,  distinguishes  the  proceedings  of 
the  Peruvian  Government,  and  if  it  were  not  necessary  that  from  this  time  forward  it 
should  be  made  known  upon  whose  side  will  rest  the  responsibility  and  upon  whom  will 
fall  the  consequences  that  may  supervene. 

His  Excellency  Mr.  Clay  says  that  he  still  entertains  the  hope  that  on  receiving  his 
intimation  the  Government  of  Peru  will  recognize  its  responsibility  for  the  capture  of 
the  ships  Lizzie  Thompson  and  Georgiana,  and  its  duty  to  indemnify  the  parties  inter^ 
ested  in  them. 

The  Government  of  Peru,  in  declaring,  as  it  now  declares,  that  it  will  only  admit,  in  the 
present  case,  the  decision  that  may  result  from,  the  arbitration  which  it  has  proposed, 
entertains  also  the  hope  that  the  Government  of  the  United  States  will  reconsider  this 
question,  and  will  be  disposed  to  submit  it  to  the  arbitration  that  has  been  named. 


126 


The  undersigned  will  not  conclude  this  communication  without  expressing  the  surprise 
that  has  been  occasioned  to  the  Government  of  Peru  by  the  contents  of  the  dispatch  of 
His  Excellency  Mr.  Clay,  when  three  days  before  he  had  heard  the  reasons  which  were 
verbally  stated  to  him  by  His  Excellency  the  President  of  the  Republic,  in  order  to 
show  why  he  refused  to  indemnify  the  owners  and  outfitters  of  the  Lizzie  Thompson  and 
the  Georgiana,  but  was  disposed  to  submit,  notwithstanding,  to  arbitration  ;  and  also  to 
convince  His  Excellency  Mr.  Clay,  of  the  sentiments  of  entire  friendship  which  the 
President  of  Peru  entertained  towards  the  Government  and  people  of  the  United  States. 
So  far,  therefore,  was  the  undersigned  from  anticipating  the  intimation  that  has  been 
made  by  His  Excellency  Mr.  Clay,  that  he  had  conceived  the  pleasant  hope  that  this 
question  was  about  to  be  satisfactorily  arranged,  and  the  more  when  Mr.  Clay  entered 
even  into  the  details  of  the  organization  of  the  mixed  commission  which  should  be  occu- 
pied with  the  classification  and  arrangement  of  the  reclamations  of  the  citizens  of  North 
America  against  Peru,  and  of  citizens  of  this  Republic  against  the  United  States — thus 
leaving  it  to  be  understood  that,  convinced  by  the  reasoning  of  the  President,  he  would 
at  least  submit  to  the  further  consideration  of  his  government  the  proposition  which  the 
undersigned  presented  in  the  dispatch  which  he  addressed  to  His  Excellency  under  date 
of  the  28th  ultimo. 

Unfortunately  this  hope  now  disappears  with  the  determination  indicated  by  His 
Excellency  Mr.  Clay,  and  which  is  all  the  more  painful  to  the  Government  of  Peru,  be- 
cause it  will  be  the  means  of  producing  the  absence  from  the  country  of  a  functionary 
who  has  received  so  many  and  so  abundant  proofs  of  the  esteem  and  honor  in  which  he 
is  held,  not  only  by  the  President  and  his  cabinet,  but  by  society  at  large. 

It  only  remains  for  me  to  say  to  Mr.  Clay,  in  order  that  he  might  repeat  the  same  to 
his  government,  that  as  His  Excellency  will  readily  understand,  this  unfortunate  suspen- 
sion of  the  functions  of  the  American  Legation  will  not  change,  on  the  part  of  Peru,  the 
good  position  of  the  commerce  and  of  the  citizens  of  the  Union,  agreeably  with  Article  2 
of  the  Treaty  of  the  26th  of  July,  1851,  and  that  the  Peruvian  Government  will  always 
be  disposed  to  renew,  on  the  most  friendly  conditions,  the  diplomatic  relations  which  Mr. 
Clay  has  been  pleased  to  suspend. 

However,  before  Mr.  Clay  carries  ^into  effect  the  act  of  demanding  his  passports,  he 
will  consider  that  of  the  propositions  which  he  has  transmitted  to  the  government  of  the 
undersigned,  that  which  will  put  an  end  to  all  reclamations  of  American  citizens  has 
been  admitted,  and  that  the  Peruvian  Government  desires  to  submit  to  arbitration  only 
that  proposal  relative  to  the  vessels  Lizzie  Thompson  and  Georgiana,  in  which  act  there 
is  no  refusal,  but  rather  a  setting  aside  to  a  certain  extent  of  the  right  of  the  govern- 
ment to  sustain  the  decisions  of  the  judicial  power.  The  entire  demand,  then,  of  the 
government  of  His  Excellency  Mr.  Clay,  is  not  refused,  and  in  the  only  point  not  admit- 
ted a  not  insignificant  sacrifice  of  the  rights  of  Peru  is  included.  If,  therefore,  Mr.  Clay 
will  be  pleased  to  consider  all  this,  together  with  all  that  previous  led  to  the  strong 
hope  that  he  would  consult  his  government  regarding  the  contents  of  the  last  communi- 
cation from  the  undersigned,  it  is  possible,  and  the  Peruvian  Government  would  be  very 
glad  of  the  same,  that  he  may  desist  from  carrying  out  his  intention  to  retire,  and  may 
adopt  the  above-named  consultation.  By  such  means  Mr.  Clay  would  be  able  to  avoid 
the  pernicious  consequences  which  a  rupture,  how  momentary  soever,  of  the  relations 
now  existing  with  Peru,  would  undoubtedly  produce  to  the  commerce  of  the  Union. 

The  undersigned  repeats  to  His  Excellency  Mr.  Clay,  the  sentiments  of  his  distin- 
guished consideration. 

JOSE  FABIO  MELGAR. 
To  His  Excellency  the  Minister  Plenipotentiary  and 

Envoy  Extraordinary  of  the  United  States. 


127 


LEGATION  OF  THE  UNITED  STATES,  ) 


LIMA,  October  9th,  1860. 
The  undersigned  received,  on  the  afternoon  of  Saturday,  the  6th  instant,  the  commu- 
nication of  His  Excellency  the  Minister  of  Foreign  Affairs  of  Peru,  addressed  to  him  in 
reply  to  his  note  of  the  2d  of  this  month,  and  can  only  deplore  that  the  persistent  deter- 
mination of  the  Peruvian  Government  in  not  admitting  its  responsibility  for  the  capture 
and  confiscation  of  the  Lizzie  Thompson  and  Georgiana  compels  the  undersigned  to  carry 
into  effect  the  instructions  of  his  government,  the  terms  of  -which  are  so  imperative  as  to 
leave  the  undersigned  no  alternative  but  to  ask  for  his  passports. 

The  undersigned  so  informed  His  Excellency's  predecessor  in  the  Ministry  (Seiior 
Carpio)  when  he  addressed  to  him  the  note  of  the  5th  June  last,  and  he  has  in  subse- 
quent interviews  repeatedly  declared  to  His  Excellency  Senor  Mel  gar,  that  diplomatic 
relations  between  the  two  governments  would  be  suspended,  if  the  Government  of  Peru 
refused  to  admit  the  first  proposition  set  forth  in  that  note,  or  refused  to  enter  upon 
some  other  understanding  similar  thereto,  for  the  indemnification  of  the  parties  inte- 
rested in  the  two  vessels. 

So  also  in  respect  to  the  proposal  for  the  submission  of  the  matter  concerning  the  ves- 
sels to  the  arbitration  of  a  third  Power,  which  proposition  Peru  has  so  urgently  de- 
manded, His  Excellency  must  be  perfectly  convinced,  as  well  by  the  verbal  and  written 
communication  from  the  undersigned,  as  also  probably  by  information  received  from  the 
Peruvian  Legation  at  "Washington,  that  the  Government  of  the  United  States  has  invari- 
ably rejected  the  proposal,  in  virtue  of  the  principles  incontrovertibly  established  at  that 
time,  and  which  are  herein  referred  to  :  and  that  accordingly  the  undersigned  has  no 
option  whatever  in  the  matter.  Besides,  the  undersigned  informed  His  Excellency  the 
President  of  Peru,  at  the  first  conference  which  he  had  the  honor  of  holding  with  him  on 
the  subject  of  these  claims,  what  those  principles  were. 

Consequently,  as  the  Government  of  Peru  was  informed  of  the  above-mentioned  facts, 
and  as  the  undersigned  assured  His  Excellency  the  President,  in  the  conference  of  the 
28th  ult.,  that  he  had  been  instructed  to  wait  five  days  for  a  categorical  answer  to  the 
propositions  submitted  by  him  on  the  5th  of  June  last,  which  notification  he  omitted  in 
note  of  that  date,  at  the  suggestion  of  Senor  Carpio,  whose  observations  led  him  to  hope 
that  the  Peruvian  Government  would  admit  the  first  proposition,  at  least  in  a  modified 
form,  the  undersigned  stated  at  the  same  time  to  His  Excellency,  that  he  had  received 
later  orders  from  his  government  to  suspend  diplomatic  relations  with  that  of  Peru,  in 
the  event  of  its  not  acceding  to  the  said  proposal.  And  this  latter  having  occurred,  the 
undersigned,  finally,  cannot  understand  how  the  contents  of  his  note  dated  the  2d  instant, 
can  have  caused  "  surprise  "  to  the  Government  of  Peru. 

It  is  true  that  after  having  heard  with  respectful  attention  the  reasons  adduced  by  His 
Excellency  the  President,  for  not  indemnifying  the  owners  of,  and  others  interested  in  the 
vessels,  for  desiring  an  arbitration,  and  for  giving  assurance  of  the  friendly  sentiments  of 
His  Excellency  for  the  Government  and  people  of  the  United  States,  and  after  His  Excel- 
lency the  Minister  for  Foreign  Affairs  had  received  instructions  to  reply  to  the  said  note 
of  the  5th  June,  the  undersigned  made  some  observations  explanatory  of  the  character  of 
a  mixed  commission  for  the  settlement  of  claims  similar  to  that  which  was  arranged  by 
a  convention  concluded  between  the  United  States  and  Great  Britain  on  the  8th  Febru- 
ary, 1853. 

But  these  observations  of  the  undersigned  were  simply  explanatory,  and  referred  par- 
ticularly to  the  other  claims  of  citizens  of  both  republics,  pending  before  the  respective 
governments. 

And  in  regard  to  the  note  which  the  Minister  of  Foreign  Afiairs  was  directed  to  ad- 
dress to  the  undersigned  in  reply  to  that  of  the  5th  June,  the  undersigned  could  do  no 
less,  on  the  ground  of  consideration  for  the  Government  of  Peru,  and  respect  for  the  com, 


128 


munication  of  the  Peruvian  Cabinet,  than  offer  to  give  it  his  best  attention,  and  to  reflect 
on  its  contents. 

The  observations,  therefore,  of  the  undersigned,  were  not  intended  to  inspire  the  idea 
that  the  proposal  for  arbitration  would  be  transmitted  for  the  reconsideration  of  his 
government. 

The  undersigned  does  not  deem  it  necessary  to  reply  particularly  to  the  observations 
contained  in  the  note  of  His  Excellency,  since,  as  it  is  evident,  the  Peruvian  Government 
has  resolved  not  to  reconsider  the  decision  announced  in  the  note  of  the  Minister  for 
Foreign  Affairs,  under  date  of  the  22d  of  December,  1859,  nor  to  proceed  to  any 
other  arrangement  in  the  case  of  the  two  vessels  illegally  captured  and  confiscated  by 
said  government,  but  only  to  the  proposal  for  an  arbitration  by  a  third  Power. 

Consequently,  as  the  undersigned  is  not  authorized  to  admit  this  proposal,  and  as  the 
Peruvian  Government  rejects  not  only  the  two  propositions  set  forth  in  the  note  of  the  5th 
of  June,  to  which  reference  has  already  been  made,  but  also  the  contents  of  the  note  of 
the  undersigned  under  date  of  the  2d  inst.,  that  the  Government  of  Peru  should  propose 
itself  to  deliver  a  certain  sum  in  liquidation  of  all  the  claims  of  the  United  States  citizens 
now  pending,  (a  proposition  which  His  Excellency  the  Minister  for  Foreign  Affairs  was 
the  first  to  suggest  to  the  undersigned,  and  which  he  therefore  confidently  hoped  would 
be  admitted,)  there  is  no  alternative  left  to  the  undersigned  but  to  request  that  His 
Excellency  should  be  pleased  to  furnish  him  with  the  necessary  passports  for  himself  and 
the  other  members  of  this  Legation. 

The  undersigned  will  not  conclude  this  communication  without  calling  His  Excel- 
lency's attention  to  the  fact  that,  when  His  Excellency  declared,  in  his  note  of  the  28th 
of  last  month,  and  in  the  course  of  various  interviews  with  the  undersigned,  that  the 
Peruvian  Government  has  not  the  power  to  reverse  the  judgment  of  condemnation  pro- 
nounced against  the  vessels,  but  is  obliged  to  execute  it,  the  same  government,  by  the 
treaty  of  the  17th  of  March,  1841,  agreed  to  indemnify,  and  did  subsequently  compensate 
the  owners  and  others  interested  in  the  Esth-r,  of  Boston,  and  her  cargo,  and  those  inter- 
ested in  the  Gen.  Brown,  of  New  York,  and  her  cargo,  which  vessels  had  been  illegally 
condemned  and  confiscated  in  Peru. 

The  treaty  of  March,  1841,  was  modified  during  the  first  administration  of  His  Excel- 
lency, the  Grand  Marshal  Castilla ;  and  if  the  Peruvian  Government  then  possessed  the 
power  of  entering  into  stipulation  for  indemnifying  the  parties  interested  in  the  Esther 
and  Gen.  Brown,  it  is  clear  that  the  government  likewise  possess  the  same  faculty  for 
indemnifying  the  parties  interested  in  the  Lizzie  Thompson  and  Georgiana,  since  the  same 
independence  of  the  judicial  power  existed  at  that  time  in  Peru,  just  as  it  does  now 
under  the  constitution,  and  especially  seeing  that  the  power  of  making  and  concluding 
treaties  is  one  of  the  most  important  attributes  of  the  Executive  of  a  Republic,  and  the 
demonstration  of  which  power  is  not  restricted  in  respect  to  the  present  case.  It  is, 
therefore,  evident  that  it  is  not  a  want  of  sufficient  power  under  the  constitution,  which 
induces  the  Government  of  Peru  to  reject  the  bases  of  the  convention  proposed  by  the 
United  States  for  the  friendly  and  equitable  settlement  of  the  claims  of  their  respective 
citizens. 

The  Government  of  Peru,  persisting  in  refusing  reparation  for  the  illegal  capture  and 
confiscation  of  the  Lizzie  Thompson  and  Georgiana,  has  caused  the  cessation  af  the  amic- 
able relations  which  have  existed  between  the  two  countries,  and  which  the  United 
States  have  always  and  with  so  much  earnestness  endeavored  to  cultivate  and  main- 
tain. 

Upon  Peru,  therefore,  falls  the  responsibility  of  all  the  consequences  which  may  result 
from  a  policy  which  the  undersigned  does  not  consider  warranted  either  in  justice  or  by 
the  calm  reflection  which  the  gravity  of  the  case  demands. 


129 


The  undersigned  has  the  honor  of  offering  to  His  Excellency  the  assurances  of  his  most 
distinguished  consideration. 

J.  RANDOLPH  CLAT. 
To  His  Excellency,  Don  JOSE  FABIO  MELGAR, 

Minister  for  Foreign  Affairs  of  Peru,  &c.,  etc. 


MINISTRY  OF  FOREIGN  AFFAIRS  OF  PERU,  ) 
LIMA,  October  17th,  1860.  f 

The  undersigned,  Minister  for  Foreign  Affairs  of  Peru,  feels  regret  in  handing 
inclosed  the  passports  which,  by  note  of  the  9th  instant,  His  Excellency  the  Minis- 
ter Plenipotentiary  and  Envoy  Extraordinary  of  the  United  States  has  requested, 
and  if  His  Excellency  deplores  that  the  determination  of  the  government  of  the 
undersigned,  not  to  acknowledge  the  responsibility  which  has  been  exacted  of  it, 
for  the  capture  and  confiscation  of  the  Lizzie  Thompson  and  Georgiana,  has  obliged 
him  to  carry  into  effect  the  instructions  of  his  Government,  that  of  the  undersigned 
does  not  the  less  regret  that  those  instructions  have  not  permitted  His  Excellency 
to  accept  the  equitable  and  friendly  proposition  which  was  submitted  to  him  in  the 
conferences  to  which  he  alludes,  nor  even  to  consult  his  government  in  regard  to 
said  proposition,  in  order  to  endeavor  to  avoid  the  extreme  measure  which  he  has 
adopted. 

As  His  Excellency  Mr.  Clay  has  deemed  it  well,  in  his  said  letter,  to  make  cer- 
tain observations  relating  to  various  points  broached  in  conferences  and  previous 
notes,  the  undersigned  will  also  refer  to  them,  though  it  may  be  useless  to  do  so 
after  having  arrived,  on  this  subject,  at  so  unfortunate  a  result  with/ the  American 
Legation. 

His  Excellency  Mr.  Clay  recalls  all  that  he  has  said  in  conferences  and  official 
notes  to  the  predecessor  of  the  undersigned,  Senor  Carpio,  to  the  undersigned  him- 
self, and  to  His  Excellency  the  President  of  the  Kepublic,  touching  the  strictness  of 
his  instructions  for  the  suspension  of  diplomatic  relations  with  Peru  in  a  given  con- 
tingency, and  he  makes  this  retrospection  with  the  object  of  demonstrating  that 
the  intimation  contained  in  his  note  of  the  2d  instant,  should  not  have  caused  sur- 
prise to  the  Peruvian  Government.  Although  this  point  must  be  of  secondary 
interest  in  the  grave  case  now  under  consideration,  the  undersigned  cannot  avoid 
insisting  that  his  government  had  reasons  for  regarding  the  said  intimation  with 
surprise.  The  government  even  had  reasons  for  believing  that  His  Excellency  Mr. 
Clay,  as  he  himself  declared  he  would,  intended  to  reflect  a  little  further  on  the 
matter  before  making  the  said  intimation;  because  the  government  had  seen  that, 
notwithstanding  the  rigor  of  his  instructions,  he  sought  writh  solicitous  and  laudable 
zeal  a  means  of  amicably  terminating  the  matter  in  question ;  and  because,  above 
all,  the  last  reply  given  to  the  propositions  of  the  United  States  did  not  present  the 
refusal  which  Avas  to  be  the  contingency  prescribed  for  the  rupture,  which  Mr. 
Clay  has  consummated,  of  the  diplomatic  relations. 

His  Excellency  says  that  he  does  not  deem  it  necessary  to  reply  particularly  to 
the  observations  in  the  note  of  the  undersigned,  under  date  of  the  6th  instant,  be- 
cause the  Peruvian  Government  has  refused  to  reconsider  its  decision,  contained  in 
the  note  of  the  22d  December,  1859,  or  proceed  to  any  other  settlement  of  this 
question.  It  is  certain  that  in  the  position  into  which  affairs  have  unfortunately 

IT 


130 


fallen,  this  discussion  is  unnecessary ;  yet  the  undersigned  cannot  omit  to  notice 
incidentally  that  from  the  22d  December  last  until  the  present  time,  nothing  new 
has  been  introduced  into  the  subject.  The  case  of  the  Lizzie  Thompson  and  Geor- 
giana  has  been  presented  together  with  other  reclamations,  and  in  the  question  so 
made  up,  the  government  of  the  undersigned  has  made  a  proposition  which  cannot 
in  justice  be  called  a  refusal  to  proceed  to  any  other  settlement.  Neither  can  the  de- 
clining to  accede  to  the  entire  proposition,  contained  in  the  note  of  His  Excellency 
Mr.  Clay,  under  date  of  the  2d  instant,  be  said  to  signify  a  refusal  of  this  descrip- 
tion, since  the  Peruvian  Government  admits  the  greater  part  of  that  proposition. 
The  retirement  of  Mr.  Clay,  therefore,  cannot  be  said  to  arise  from  an  absolute 
refusal  of  his  demands. 

In  speaking  of  the  proposition  just  mentioned,  His  Excellency  is  pleased  to  say 
that  he  had  hoped  it  would  be  admitted,  since  the  undersigned  had  been  the  first  to 
suggest  it.  And  here,  because  this  somewhat  touches  the  circumspection  which 
the  undersigned  should  observe,  he  claims  the  rather  lengthened  attention  of  Mr. 
Clay. 

His  Excellency  cannot  have  forgotten  that  whenever  the  undersigned  read  the 
said  proposition  (when  there  occurred  in  it  the  phrase  that  the  Government  of 
Peru  should  acknowledge  itself  responsible  for  the  capture  and  confiscation  of  the 
Lizzie  Thompson  and  Georgiana,}  the  paper  fell  from  his  hands,  so  to  speak,  on  his 
arriving  at  said  passage,  and  he  could  not  continue  without  saying  to  Mr.  Clay  that 
the  Government  of  Peru  would  never  consent  to  it  nor  lend  itself  to  any  kind  of 
instrument  which  hinted  at  the  acknowledgment  of  that  responsibility.  On  one. 
occasion,  the  undersigned  being  urged  by  His  Excellency  Mr.  Clay  to  give  him  an 
answer  which  he  might  transmit  to  his  Government,  the  undersigned  said  to  him 
that  he,  (the  undersigned,)  as  a  Minister  in  possession  of  the  views  and  decision  of 
His  Excellency  the  President  of  the  Republic,  and  of  the  opinion  of  the  other 
Ministers  composing  the  Cabinet,  could  not  give  an  affirmative  answer  to  his  de- 
mand; and  that  neither,  as  Minister  of  Foreign  Affairs,  capable  by  his  position  of 
compromising  his  government  by  his  reply,  could  he  accede  to  the  demand,  and  that 
he  refused  it,  being  intimately  convinced  of  the  justice  of  Peru  in  the  matter. 
His  Excellency  Mr.  Clay  said  that  he  did  not  admit  this  answer — that  is,  that  he 
regarded  himself  as  not  answered.  The  undersigned  told  him  that  he  agreed  that 
his  reply  should  not  be  admitted,  in  the  sense  indicated,  and  thus  the  conference 
terminated— what  was  said  at  its  conclusion  being  considered  private. 

From  this,  no  doubt,  originated  His  Excellency  Mr.  Clay's  having  solicited, 
through  the  undersigned,  an  interview  with  his  Excellency  the  President,  to  which 
request  the  undersigned  willingly  acceded,  in  the  hope  that,  as  Mr.  Clay  said,  some 
amicable  arrangement  might  result  therefrom.  Although,  after  that  time,  the  un- 
dersigned might  have  suggested  some  idea  which  might  have  softened  his  strict 
refusal,  without  prejudice  to  his  circumspection,  since  the  matter  was  going  to  be 
treated  with  His  Excellency  the  President,  at  the  request  of  Mr.  Clay,  yet  notwith- 
standing that  Mr.  Clay  twice  urged  him  to  consider  some  form  of  document  which 
might  be  presented  to  His  Excellency  the  President,  the  undersigned  did  nothing 
more  than  suggest  to  him  to  omit,  in  his  proposition,  the  phrase  acknowledging  the 
responsibility,  and  to  mention  summarily  the  pending  claims,  in  order  that  they 
might  thus  be  taken  into  consideration;  that  is,  that  they  might  be  discussed  with- 
out the  undersigned's  guaranteeing  that  the  matter  would  be  admitted.  On  the 
first  or  second  day  following,  His  Excellency  Mr.  Clay  brought  to  the  office  of  the 
Minister  the  said  proposition,  written  by  his  own  hand,  and  with  the  aforementioned 


131 


phrase  suppressed,  to  be  presented  in  that  form  to  His  Excellency  the  President 
If  Mr.  Clay  calls  this  suggesting  the  proposition,  the  undersigned  sees  in  it  nothing 
more  than  a  persistence  in  the  opinion  that  the  Government  of  Peru  would  never 
consent  to  declare  itself  responsible  for  the  seizure  and  confiscation  of  the  Lizzie 
Thompson  and  Georgiana. 

Among  other  observations,  His  Excellency  Mr.  Clay  alludes  to  the  transaction 
of  March,  1841,  by  which  indemnities  were  conceded  to  the  vessels  Esther  and 
General  Brown,  which  had  been  condemned  by  the  judicial  authorities  of  Peru.  By 
this  allusion  His  Excellency  attempts  to  prove  that  similar  indemnities  must  now 
be  granted,  notwithstanding  that  the  Constitution  of  the  State  may  prevent,  since 
the  Government  now  possesses  the  same  powers  which  it  enjoyed  when  the  cases 
of  the  Esther  and  General  Brown  occurred.  Mr.  Clay  will  permit  the  undersigned 
to  think  differently,  for,  in  order  to  decide  whether  the  Constitution  does  or  does 
not  prohibit  such  or  such  an  action,  the  proper  way  is  not  to  investigate  indirectly, 
but  rather  directly  to  open  and  examine  that  Constitution;  and  certainly  that  which 

now  rules  in  the  republic  establishes  the  independence  of  the  judicial  authority, 

and  what  is  more  noteworthy  in  the  present  case,  prohibits  the  President  of  the 
Republic  from  making  treaties  inimical  to  the  sovereignty  of  the  State.  And  if  the 
Constitution  which  ruled  when  the  aforementioned  cases  transpired,  established, 
like  the  present  one,  the  independence  of  the  judicial  authority,  and  if,  notwith- 
standing that  independence,  indemnities,  contrary  to  the  judgment  of  those  tribunals 
were  conceded,  it  is  evident  that  that  was  an  exceptional  proceeding,  which  must 
have  rested  on  its  own  peculiar  grounds,  and  which  could  not  furnish  an  example 
for  the  case  of  the  Lizzie  Thompson  and  Georgiana. 

If  the  allusion  of  His  Excellency  Mr.  Clay  is  not  presented  otherwise  than  as  a 
precedent,  which  in  its  present  aspect,  the  undersigned  does  not  doubt  that  His 
Excellency  will  be  pleased  to  take  into  consideration : — that  precedents  do  not 
possess  the  same  force  in  the  presence  as  in  the  absence  of  laws : — that  in  order  to 
be  cited,  a  precedent  should  have  entire  analogy  with  the  existing  case  : — that  no 
analogy  has  been  demonstrated  between  the  transaction  to  which  Mr.  Clay  alludes, 
and  that  which  is  now  in  question ;  and  that  there  are  rights,  the  defence  of  which 
cannot  be  yielded  because  of  any  precedent  or  even  of  a  previous  explicit  renuncia- 
tion. The  consequences  of  these  principles  are  so  obvious,  and  the  opportunity  for 
discussing  them  with  Mr.  Clay  having  passed,  the  undersigned  will  not  go  into  a 
detail  of  those  consequences,  but  will  only  point  but  the  facts  :  That  the  indemnifi- 
cation to  which  His  Excellency  refers  was  made  in  the  year  1841,  whe_i  Peru  was 
emerging  from  ten  years  of  complete  chaos,  during  which  she  had  been  conquered 
and  dismembered,  with  the  loss  of  her  unity  and  nationality.  Peru,  then  newly 
born,  found  herself  confronted  with  a  difficulty  from  which  she  had  to  escape  by 
the  transaction  of  March,  1841.  That  difficulty  had  been  contracted  when  Peru 
had  neither  her  own  Constitution  nor  her  own  Government ;  when  her  tribunals 
were  not  free,  and  her  laws  were  ineffective.  His  Excellency  will,  then,  readily 
understand  that  precedents  should  not  be  sought  in  that  normal  epoch,  and  that  an 
a^t  of  the  Government  of  the  Peru-Bolivian  Confederation  could  not  serve  as  a 
precedent  to  the  prejudice  of  Peru  after  she  had  recovered  her  independence. 

Very  grave  and  delicate  is  the  question  treated  in  the  note  of  Mr.  Clay,  wherein 
he  seeks  to  throw  upon  the  government  of  the  undersigned  the  responsibility  of 
the  cessation — to  use  his  language — of  the  friendly  relations  of  Peru  with  the 
United  States.  In  regard  to  Mr.  Clay,  the  government  of  the  undersigned  will 
deny  the  responsibility ;  requesting  only  that  he  will  remember  what  has  been 


132 


said  verbally  and  in  writing,  in  the  course  of  the  lengthy  discussion  of  this  subject. 
In  regard  to  the  government  of  His  Excellency  and  to  the  whole  civilized  world, 
Peru  will  demonstrate,  when  occasion  arises,  (and  may  such  occasion  never  arise,) 
that  she  is  entirely  free  of  that  responsibility,  and  for  the  present  it  will  suffice  to 
say  that  Peru,  in  defence  of  a  principle  of  vital  importance,  answers  a  demand, 
purely  pecuniary,  of  the  United  States,  not  with  an  absolute  refusal  of  such  claim , 
but  submitting  its  justice  clear  and  certain,  as  though  it  were  obscure  or  doubtful 
to  the  decision  of  an  umpire,  with  whose  judgment  she  engages  to  conform  ;  and 
this  after  smoothing  the  way  to  a  settlement  of  other  pecuniary  claims,  in  the  man- 
ner proposed  by  the  United  States,  in  all  of  which  the  Peruvian  Government  fore- 
goes its  power  to  decide  for  itself  all  executive  and  diplomatic  matters,  and  consents 
to  present  as  doubtful,  and  to  submit  to  a  foreign  decision,  a  right  which  she  believes, 
with  a  profound  conviction,  belongs  to  her. 

Finally,  the  undersigned,  by  express  order  of  His  Excellency  the  President  of 
the  Republic,  has  the  honor  of  saying  to  His  Excellency  the  Minister  Plenipoten- 
tiary and  Envoy  Extraordinary  of  the  United  States,  that  there  is  yet  time  for  His 
Excellency,  after  a  moment  of  calm  and  serious  reflection,  to  suspend  his  determi- 
nation to  withdraw,  and  to  refer  to  his  government  such  points  as  may  appear  1o 
him  necessary,  in  view  of  the  nature  and  position  of  the  question,  the  extreme 
proofs  of  deference  which  have  been  shown  him,  and  the  grave  responsibilities 
which  may  succeed  to  an  act  that  cannot  fail  to  prejudice  the  commerce  of  Peru 
and  of  the  United  States. 

If  His  Excellency  Mr.  Clay  should  resolve  to  consummate  his  intention,  the  un- 
dersigned must  remain  with  regret  at  not  having  been  able  to  obtain  from  His 
Excellency  a  friendly  termination  of  this  affair ;  but  it  will  always  afford  him  plea- 
sure to  reiterate  to  His  Excellency  the  assurance  of  his  high  esteem  and  personal 
appreciation. 

JOSE  FABJO  MEXCAR, 
To  His  Excellency  the  Minister  Plenipotentiary  and 

Envoy  Extraordinary  of  the  United  States, 


FORM   OF   THE    PASSPORT. 

Jose  Fdbio  Melgar,  Minister  of  Foreign  Affairs  of  Peru. 

Whereas,  His  Excellency  Don  John  Randolph  Clay,  Envoy  Extraordinary  and 
Minister  Plenipotentiary  of  the  United  States,  has  requested  of  the  Government 
passports  to  return  to  the  said  States,  together  with  his  family  and  other  persons 
composing  the  Legation : 

I  therefore  order  and  direct  the  authorities  of  the  rcpublic^and  I  request  those  of 
foreign  countries,  to  place  no  embarrassment  whatever  in  the  way  of  the  journey 
of  said  Mr.  Clay,  his  family  and  party,  but  rather  to  afford  them  all  facilities  that 
may  be  necessary,  and  to  show  them  due  respect. 

Executed  in  Lima  on  the  17th  day  of  October,  18GO. 

(Signed)  JOSE  FABIO  MELGAR. 


133 


LIMA,  Oct.  19,  1860. 

The  undersigned  has  had  the  honor  to  receive  the  communication  of  His  Excel- 
lency the  Minister  of  External  Relations  of  Peru,  dated  the  17th  instant,  inclosing 
the  passports  he  had  demanded  in  his  note  of  the  9th  instant,  in  consequence  of  the 
refusal  of  the  Government  of  Peru  to  accept  the  propositions  addressed  to  it  in  the 
name  of  the  United  States,  either  in  their  original  form  or  as  modified  by  the  un- 
dersigned in  the  conferences  he  had  the  honor  to  attend  with  the  President  of  the 
Republic  and  the  Minister  of  External  Relations.  The  undersigned  consequently, 
greatly  to  his  regret,  is  placed  by  the  solemn  act  of  the  Government  of  Peru,  under 
the  necessity  of  consummating  the  instructions  transmitted  to  him  by  the  Secretary 
of  State,  and  of  informing  His  Excellency  the  Minister  of  External  Relations,  that 
the  diplomatic  relations  between  the  two  republics  will  be  closed  from  and 'after 
this  date. 

In  communicating  this  notice  to  the  Peruvian  Government,  the  undersigned  can- 
not refrain  from  observing  that  the  repeated  assurances  given  him  by  Senor  Melgar, 
and  by  other  ministers  who  have  heretofore  been  intrusted  with  the  portfolio  of  ex- 
ternal relations,  of  their  ardent  desire  to  devise  some  means  of  arriving  at  a  satisfac- 
tory solution  of  the  pending  questions,  had  induced  the  undersigned  to  believe  that 
he  might  yet  be  able  to  avoid  the  necessity  of  his  official  withdrawal  from  Peru. 
Unhappily  this  has  not  been  the  case,  and  now,  when  on  the  eve  of  departing  from 
the  countiy,  the  thorough  conviction  attends  him  of  having  omitted  no  effort  to 
preserve  those  friendly  relations,  which  it  is  the  duty  of  both  nations  to  cultivate, 
and  which  have  been  interrupted  by  the  reiterated  refusal  of  the  Peruvian  Govern- 
ment to  do  justice  to  the  citizens  of  the  Union  for  damages  committed  under  its 
authority. 

And  here  the  undersigned  would  close  this  correspondence,  but  lor  the  necessity  of 
correcting  an  equivocation  in  which  your  Excellency  has  indulged,  in  regard  to  the  two 
modified  propositions  offered  by  the  undersigned,  probably  because  your  Excellency  has 
referred  to  one  conference  that  which,  in  fact,  occurred  at  several  interviews.  Your  Ex- 
cellency may  remember  that,  in  the  month  of  June  last,  the  undersigned,  with  a  view  to 
removing  the  objection  urged  by  your  Excellency  to  the  first  proposition  contained  in  the 
note  of  the  undersigned  of  June  5th,  1860,  (namely,  that  its  acceptance  by  the  Peruvian 
Government  would  constitute  a  disastrous  precedent),  offered  to  modify  it  in  the  follow- 
ing terms:  "Article  1.  The  Government  of  Peru  agrees  to  pay  to  the  owners,  captains, 
and  other  parties  interested  in  the  barks  Lizzie  Thompson  and  Georgiana  a  sura  which 
shall  be  determined  by  Article  2d  of  this  Convention."  Your  Excellency  at  that  time 
and  at  various  subsequent  conferences  declined  to  accede  to  the  proposal,  alleging  that 
it  would  involve  a  recognition  of  the  responsibility  of  the  Peruvian  Government  to  in- 
demnify the  parties. 

It  was  not  until  a  conference,  which  occurred  on  the  21st  September,  that  your  Ex- 
cellency, in  refusing  to  accept  the  proposition  first  quoted,  and  in  repeating  the  assur- 
ance of  your  ardent  desire  to  discover  some  means  of  attaining  a  friendly  solution,  said 
that  you  believed  it  might  be  accomplished  by  the  Peruvian  Government  consenting  to 
give  a  considerable  sum  in  liquidation  of  all  claim,  "as  the  principle  disputed  by  Peru, 
in  the  case  of  the  barks,  would  thus  be  saved."  And  your  Excellency,  at  the  same  time, 
informed  the  undersigned  that  he  could  not  formally  tender  this  basis  of  settlement  with- 
o.it  previously  consulting  the  President. 

The  undersigned  replied,  substantially,  that  he  would  reflect  upon  the  terms  in 
which  such  a  proposition  should  be  couched,  and  also  assented  that  this  conversation 
should  neither  bind  nor  compromise  either  of  the  parties.  But  the  undersigned  has  no 
recollection  that  the  objeqt  of  the  interview  was  to  be  regarded  as  private,  since  there 


134: 

was  no  necessity  of  placing  the  seal  of  confidence  upon  it ;  and,  moreover,  if  the  under- 
signed had  considered  it  private,  he  would  not  have  presented  the  proposition  formally 
when  writing  in  the  presence  of  the  Chief  Clerk,  in  the  Foreign  Office,  on  the  following 
day. 

Such  ia  the  expression  of  the  undersigned  in  regard  to  what  took  place  on  that  occa- 
sion ;  and  he  can  hardly  be  deceived,  since  he  preserved  a  memorandum  of  what  passed, 
nor  does  the  undersigned  perceive  any  reason  why  your  Excellency  should  consider  as 
private  a  transaction  which  occurred  naturally  in  the  course  of  negotiation,  and  which 
cannot,  owing  to  the  manner  in  which  the  incident  occurred,  affect  in  any  way  your  pri- 
vate or  public  responsibility.  On  the  contrary,  indeed,  the  undersigned  can  only  regard 
it  as  honorable  to  your  Excellency  that  you  should  have  offered  a  suggestion  which, 
could  it  have  been  realized,  would  have  obviated  all  difficulty. 

With  respect  to  the  closing  remarks  of  your  Excellency,  made  by  the  express  instruc- 
tions of  the  President  of  the  Republic,  the  undersigned  has  the  honor  to  say  that  a  mature 
consideration  and  a  clear  discussion,  lasting  through  the  past  two  years,  have  confirmed 
him,  and  also  the  Government  of  the  United  States,  which  has  examined  the  question  in 
all  its  phases,  in  the  conviction  that  the  claims  of  the  owners  and  others  interested  in  the 
two  barks  are  entirely  just.  However  serious,  therefore,  may  be  the  responsibility  for 
the  consequences  to  follow  a  cessation  of  diplomatic  relations  between  the  two  nations, 
they  must  be  ascribed  to  the  acts  of  the  Government  of  Peru. 

'1  he  undersigned,  notwithstanding,  being  always  disposed  to  pay  respect  to  the  wishes 
of  His  Excellency  the  President  of  the  Republic,  would  not  hesitate  to  assume  the 
responsibility  of  entertaining  any  further  propositions  which  may  be  addressed  to  him 
by  the  Peruvian  Government,  provided  it  be  compatible  with  the  instructions  of  the 
undersigned. 

It  has  ever  been  his  ardent  desire  to  maintain  and  draw  closer  the  relations  of  the  two 
nations,  and  if  he  is  obliged  to  withdraw  from  this  capital  in  obedience  to  his  explicit 
and  peremptory  instructions,  it  will  be  after  having  exerted  all  the  resources  which  an 
experience  of  many  years  in  the  service  of  his  country  have  suggested  to  him  to  induce 
the  Government  of  Peru  to  bring  to  an  amicable  adjustment  the  affairs  in  question. 

In  every  event,  however,  the  undersigned  shall  always  recur  with  grateful  recollection 
to  the  friendship  with  which  he  has  been  honored  by  His  Excellency  the  President  of 
the  Republic,  and  avails  himself  of  this  occasion  to  assure  His  Excellency  Senor  Melgar 
of  his  most  distinguished  consideration  and  high  personal  regard. 

J.  RANDOLPH  CLAY. 
To  His  Excellency  DON  JOSE  FABTO  MELGAR, 

Minister  of  External  Relations  of  the  Republic  of  Peru. 


LIMA,  Oct.  22d,  1860. 

The  undersigned,  Minister  of  External  Relations,  has  had  the  honor  to  receive  the 
esteemed  note  of  His  Excellency  the  Envoy  Extraordinary  and  Minister  Plenipotentiary 
of  the  United  States,  dated  the  19th  inst.,  in  which  he  acknowledges  the  receipt  of  the 
passports  which,  at  his  request,  were  transmitted  to  him,  and  to  confirm  the  fuct  that 
from  that  date  the  diplomatic  relations  between  this  republic  and  that  of  the  Union 
should  be  closed.  lj[is  Excellency  states  that  you  have  given  this  notice  with  great 
vegret,  and  solely  in  obedience  to  your  instructions,  in  consequence  of  the  government  of 
the  undersigned  having  failed  to  accept  the  propositions  which  you  had  presented  to  it 
in  the  matter  of  the  Lizzie  Ihompson  and  the  Georgiana.  The  undersigned  can  also 
assure  His  Excellency  Mr.  Clay  that  this  government  has  deeply  regretted  to  deliver  the 
passports,  which  he  demanded,  and  that  it  has  felt  the  most  profound  sorrow  at  not 


135 


being  able  to  go  further  than  it  has  gone  in  concessions  and  the  sacrifice  of  its  rights  in 
order  that  the  difficulty  referred  to  might  be  terminated  in  the  most  prompt  and  friendly 
manner. 

Notwithstanding  the  cessation  of  diplomatic  relations,  Mr.  Clay  very  properly  wishes 
to  revive  certain  particulars  of  the  question,  and  the  undersigned  is  quite  ready  to  give 
them  a  reconsideration,  with  the  dame  intentions  as  those  which  govern  His  Excellency. 

I  shall  not  enter  into  a  discussion  of  so  much  of  what  your  Excellency  has  said  touch- 
ing the  narration  made  by  the  undersigned  of  what  occurred  in  the  several  conferences, 
for  the  discussion  of  the  proposition  ultimately  presented  by  Mr.  Clay.  It  is  proper  to 
omit  so  much,  since  His  Excellency,  with  striking  frankness,  has  charged  the  undersigned 
with  an  equivocation.  It  is  the  more  advisable  to  waive  it,  because  to  discuss  it  will  in 
no  way  aid  in  the  principal  part  of  the  question  ;  and  the  undersigned  may  the  more 
safely  forego  the  discussion,  as  Mr.  Clay  has  already  declared  th  at  whatever  the  words 
and  phrases  employed  they  were  not  "to  bind  or  compromise"  any  of  the  parties.  The 
undersigned  only  recurs  to  this  point  with  the  single  object  of  showing  that  he  had  con- 
tracted no  engagement  to  consider  the  final  proposition  presented  by  Mr.  Clay. 

In  controverting  the  closing  portion  of  the  note  of  the  undersigned,  dated  on  the  17th, 
Mr.  Clay  says  substantially  that  protracted  discussion  and  mature  and  prolonged  exam- 
ination of  the  matter  has  produced  in  him  and  in  his  government  the  conviction  that  the 
claims  of  the  owners  and  other  parties  interested  in  the  two  barks  are  entirely  just.  His 
Excellency  in  this  way  justifies  himself  in  saying,  that  the  responsibilities  which  attend 
from  the  suspension  of  diplomatic  relations,  originating  in  the  rejection  of  these  claims, 
will  belong  to  Peru. 

Without  serious  offence  to  Mr.  Clay,  the  undersigned  could  not  have  presumed  that, 
in  the  absence  of  the  conviction  he  expresses,  he  would  have  insisted  so  strenuously  in 
his  demands,  and  would  have  proceeded  to  the  extreme  of  severing  his  official  relations 
with  the  Peruvian  Government.  But  Mr.  Clay  will  still  do  this  government  the  justice 
to  believe  that,  if  it  has  refused  and  shall  still  refuse,  to  pay  the  indemnities  demanded 
of  it,  it  will  only  be  because  it  is  conscientiously  convinced  that  the  claim  of  the  owners 
and  others  interested  in  the  vessels  which  have  caused  this  question,  are  wholly  unjust. 
In  such  a  case,  it  is  only  left  for  the  undersigned  to  submit  them  to  the  tribunal  which 
will  be  constituted  by  the  civilized  world,  when  they  come  to  know  the  reasons  which 
each  of  the  parties  has  urged  in  support  of  its  position. 

In  the  meantime,  the  undersigned  cannot  refrain  from  calling  the  attention  of  Mr.  Clay 
to  the  fact  that  the  conflict  is  not  between  the  demand  of  one  nation  and  the  refusal  of 
another,  but  between  such  a  demand  and  the  proposition  to  submit  the  same  to  the 
judgment  of  an  arbitrator.  The  nation,  therefore,  which  would  be  sure  of  justice,  and 
consequently  of  a  favorable  judgment,  should  have  accepted  this  means  of  accommoda- 
tion before  rupturing  its  relation  with  the  other ;  and  it  must  be  held  responsible  for  the 
consequences  of  the  rupture,  and  not  that  other,  who  has  not  opposed  a  dogged  refusal, 
nnd  who  would  hasten  to  do  justice,  if  ihe  umpire  should  declare  in  favor  of  the 
claimants. 

The  undersigned,  in  present  circumstances,  reads  with  much  pleasure,  in  the  note  of 
Mr.  Clay,  that  he  would  not  hesitate  to  take  the  responsibility  of  receiving  any  proposi* 
tion  compatible  with  his  instructions  which  the  Peruvian  Government  might  yet  address 
to  him  for  a  pacific  arrangement,  His  Excellency  writes  this  in  response  to  an  analogous 
intimation,  which  the  undersigned  had  the  honor  to  submit  in  his  last  note.  Sincere  as 
is  the  government  of  the  undersigned,  and  sincere  as  is  Mr.  Clay,  in  declaring  their  dispo- 
sition to  perpetuate  the  good  relations  of  Peru  and  the  United  States,  the  undersigned 
cannot  bring  himself  to  believe  that  it  is  no  longer  possible  to  debate  this  question  under 
favorable  auspices,  and  to  render  them  available,  with  a  view  to  avoid,  if  possible,  the 
suspension  of  diplomatic  relations  which  Mr.  Clay  contemplates.  He  will  be  permitted 
to  remind  Mr.  Clay,  that  in  his  last  conference  with  His  Excellency  the  President,  he 


136 


said  "  that  in  the  last  resort  he  might  consent  on  his  own  responsibility  to  the  admission 
of  a  temporary  arrangement  during  the  short  period  necessary  for  him  to  employ  in  con- 
sulting his  government."  If  Mr.  Clay  will  take  this  course,  which  can  in  no  manner  com- 
promise him,  he  will  give  a  proof  of  his  constant  desire  to  draw  still  closer  the  relations 
of  his  country  with  Peru,  he  will  render  it  possible  that  upon  final  reflection. his  govern- 
ment may  accede  to  the  equitable  proposal  of  arbitration ;  that  with  a  grave  and 
thorough  consciousness  his  rights  have  been  presented  by  the  undersigned,  and  will 
furnish  this  government  with  the  pleasing  ground  of  hope  that  Mr.  Clay  will  not  see 
himself  constrained  to  retire  from  this  capital. 

As  it  is,  profoundly  regretting  that  Mr.  Clay  is  about  to  withdraw,  the  undersigned 
would  remind  him  of  what  he  signified  on  a  former  occasion,  that  American  citizens  and 
property  in  Peru  will  enjoy  the  same  protection  of  the  laws  as  if  they  were  asserted  1  y 
the  most  zealous  representatives  of  his  nation. 

Whatever  may  be  the  final  resolution  of  Mr.  Clay,  the  proof  of  friendship  he  has 
given  will  always  be  grateful  to  the  President  of  the  Republic;  and  the  undersigned 
will  preserve  the  distinguished  esteem  with  which  he  has  regarded  ITis  Excellency,  and 
the  high  personal  regard  which  he  has  had  the  honor  to  award  him. 

(Signed)  JOSE  F.  MELGAR. 

To  His  Excellency  the  Envoy  Extraordinary  and 

Minister  Plenipotentiary  of  the  United  States. 


LIMA,  Oct.  23d,  1860. 

The  undersigned  has  had  the  honor  of  receiving  the  communication  which  His  Excel- 
lency the  Minister  for  Foreign  Affairs  of  Peru  has  addressed  to  him,  under  date  of  the 
22d  inst.,  and  to  which  the  undersigned  now  replies,  out  of  consideration  for,  and  respect 
to  the  Peruvian  Government ;  and  also,  because  His  Excellency  has  thought  proper  to 
say  that  the  difference  which  has  arisen  in  the  question  of  the  vessels  Lizzie  Thompson 
and  Georgiana  result  not  from  the  demand  of  the  one  nation  and  the  refusal  of  the  other, 
but  from  the  claim  of  the  one  nation  and  the  proposal  on  the  part  of  the  other  to  submit 
the  same  to  arbitration. 

The  undersigned  could  at  once  accept  the  position  mentioned  by  the  Peruvian  Gov- 
ernment, if  it  included  all  its  consequences,  because  if  the  difference  has  not  had  its  origin 
in  the  claim,  but  in  the  manner  of  its  settlement,  and  its  submission  to  the  arbitration  of 
a  third  nation,  Peru  virtually  admits  the  principle  assumed  by  the  Government  of  the 
United  States  in  the  case  of  these  vessels,  and  also  admits  the  justice  of  the  claim  for  in- 
demnity which  the  United  States  have  made  in  favor  of  the  parties  concerned.  If  then, 
there  is  no  other  question  on  the  part  of  Peru  in  regard  to  the  claim  made  by  the  United 
States,  except  that  of  submitting  it  to  an  arbitration,  the  undersigned  believes  that  a 
mixed  commission  appointed  respectively  byj  both  governments,  would  settle  the  points 
in  dispute  as  well  as  it  could  be  donft  by  the  arbitration  of  a  foreign  power. 

His  instructions  do  not  permit  the  undersigned  to  go  any  further  in  the  present  mat- 
ter. He  has  frequently  informed  the  Peruvian  Government,  and  ho  now  explicitly  re- 
peats it  to  His  Excellency  the  Minister  for  Foreign  Affairs,  that  he  cannot  for  a  moment 
accept  any  proposal  which  might  tend  to  infringe  or  to  cast  any  doubt  upon  the  unques* 
tionable  rights  and  privileges  enjoyed  by  American  citizens  in  their  legitimate  com- 
merce. And  it  is  not  only  the  duty  but  the  firm  determination  of  the  Government  of  the 
United  States  to  protect  that  commerce  under  all  circumstances.  This  is  with  the  gov- 
ernment a  supreme  principle  indispensable  to  its  existence,  and  superior  to  any  consid- 
erations, how  great  soever  they  may  be,  and  which  the  government  regards  as  superior 
even  to  those  considerations  which  by  reason  of  their  gravity,  and  for  the  sake  of  pro- 
priety and  convenience,  might  he  submitted  to  the  arbitration  of  a  third  Power. 


13T 


On  this  ground  the  undersigned  cannot  admit  any  discussion  which  might  involve  the 
possibility  of  accepting  the  proposition  of  the  Peruvian  Government.  The  determination 
of  His  Excellency's  government,  not  to  accept  of  any  of  the  bases  proposed  by  the  un- 
dersigned for  the  settlement  of  the  question  of  the  ships  upon  the  arbitration  by  a  third 
Power,  as  the  only  expedient  for  a  friendly  solution,  was  the  reason  which  induced  the 
undersigned  to  request  his  passports,  in  obedience  to  his  instructions.  These  have  already 
been  handed  to  the  undersigned  by  the  Peruvian  Government,  and  diplomatic  relations 
between  the  two  republics  have  been  suspended. 

Consequently,  the  undersigned  cannot  receive  any  official  communication  from  His  Ex- 
cellency the  Minister  of  Foreign  Affairs,  except  the  clear  and  distinct  acceptance  of  the 
first  proposition  contained  in  the  note  of  the  undersigned,  under  date  of  the  5th  of  June 
last,  or  the  acceptance  of  one  of  the  bases  which  the  undersigned  has  had  the  honor  of 
proposing  to  the  Government  of  Peru. 

The  undersigned,  after  thanking  His  Excellency  the  President  of  the  Republic,  and  His 
Excellency  the  Minister  for  Foreign  Affairs,  for  the  flattering  opinion  which  they  have 
been  pleased  to  express  of  him  personally,  avails  himself  of  the  occasion  to  reiterate 
to  His  Excellency  Senor  Melgar,  the  assurance  of  his  highest  consideration, 

J.  R,  CLAY. 
To  His  Excellency  the  Minister  for  Foreign  Affairs  of  Peru. 


CIRCULAR. 

MINISTRY  OF  FOREIGN  RELATIONS  OF  PERU,  ) 
LIMA,  October  18th,  1860.         f 

The  diplomatic  relations  which  have  existed  between  Peru  and  the  United  States 
being  interrupted,  and  the  diplomatic  agent  of  the  United  States  accredited  to  this 
Republic,  being  about  to  quit  this  country,  the  persons,  property,  and  commerce  of 
the  citizens  of  those  States  remain  under  the  protection  of  the  Peruvian  Govern- 
ment, and  in  the  enjoyment  of  all  the  guarantees  assured  by  the  law  to  natives. 
If,  under  any  circumstances,  an  act  of  abuse,  injustice,  or  hostility,  against  a  citizen 
of  the  Union  would  be  punishable  —now,  that  they  continue  to  reside  in  the 
country  trusting  in  the  justice  which  distinguishes  the  present  Administration,  it  is 
necessary,  not  only  in  compliance  with  the  Constitution,  and  with  article  2  of  the 
Treaty  of  Friendship,  Commerce,  and  Navigation,  of  July,  1851,  which  exists  be- 
tween this  country  and  the  United  States,  but  also  in  demonstration  of  the  fact  that 
Peru  rises  to  the  height  of  the  civilization  of  the  age,  that  you  should  charge  most 
especially  all  the  authorities  in  your  district  to  scrupulously  see  that  the  persons 
and  property  of  said  citizens  residing  or  traveling  in  the  Republic  be,  as  I  have 
already  had  the  honor  of  saying  to  you,  respected  and  secured,  affording  them  all 
the  protection  which  the  laws  assure  them,  and  taking  all  precautionary  measures 
to  prevent  the  complication  of  the  present  situation,  or  the  originating  of  com- 
plaints and  accusations,  which  the  national  dignity  requires  should  be  avoided  under 
all  circumstances. 

I  would  but  offend  your  intelligence,  were  I  to  go  on  and  point  out  to  you  the 
means  of  carrying  into  effect  these  orders,  which  I  beg  you  will  have  the  kindness 
to  put  in  force  immediately,  and  I  have  no  doubt  that  the  simple  mentioning  of  the 
same  to  you  will  lead  to  the  fulfillment  of  the  plausible  object  which  I  have  in  view 
in  addressing  to  you  this  order,  by  the  special  direction  of  His  Excellency  the 
President  of  the  Republic. 

JOSE  FABIO  MELGAR. 
18 


188 


(Translated  from  the  French.) 

OFFICE  OF  FOREIGN  AFFAIRS,  ) 

Political  Department,  Section  of  Litigous  Affairs.    \ 

PARIS,  July  15th,  1858. 
To  Mr.  HUET,  Consul-General  and  Charge*  d' Affairs  of  France,  at  Lima; 

Sir, — In  your  official  despatch  of  25th  February  last,  you  have  informed  me  of  the  re- 
clamation presented  against  the  Peruvian  Government  by  Mr.  Frederick  Freraut,  a 
French  citizen,  residing  at  Iquique,  and  Consular- A  gent  of  France  at  that  place. 

Mr.  Freraut  states  that  he  had  purchased  from  General  Rivas,  who  was  insurrected 
against  the  Government  established  at  Lima,  the  right  to  take  guano  from  the  deposits 
at  Pabellon  de  Pica  and  Punta  de  Lobos,  and  that  two  ships  chartered  for  the  purpose 
of  taking  in  cargoes  of  the  said  fertilizer  had  been  captured  by  the  Peruvian  Govern- 
ment. In  virtue  of  these  facts,  Mr.  Freraut  claims  an  indemnity  of  $87,773,  and  has 
applied  to  you  requesting  you  to  claim  this  sum  from  that  government.  You  have  re- 
mitted  to  me  Mr.  Freraut's  statement  and  request,  with  the  accompanying  documents,  and 
asked  for  my  instructions  on  the  subject.  The  importance  of  the  reclamation,  Mr.  Fre- 
raut's position,  and  the  nature  of  the  facts,  give  to  this  question  such  a  grave  character, 
that  I  have  thought  it  proper  to  submit  it  to  the  investigation  of  the  Committee  on, 
Litigous  Affairs  in  my  department. 

This  committee  issued,  on  the  22d  of  June,  the  following  report ; 
"  Taking  in  consideration  that  the  Peruvian  Government  has  declared  in  numerous 
documents  which  have  received  great  publicity,  even  in  France,  that  cargoes  of  guano 
could  only  be  taken  from  the  deposits  at  the  Chincha  Islands  and  in  virtue  of  special  per- 
mits issued  by  the  Custom- House  at  Callao,  after  the  fulfillment  of  certain  previous 
formalities  required  by  it ;  and  that,  moreover,  the  said  Peruvian  Governments  has  made 
known  his  intention  of  persecuting  and  capturing  all  the  vessels  that  might  violate  these 
established  rules ; 

"  That,  with  a  full  knowledge  of  these  facts,  Mr.  Freraut  bought  from  General  Rivas 
these  cargoes ;  that  he  ought  to  have  foreseen  all  the  risks  to  which  he  was  exposing 
himself  in  this  business,  and  that  he  cannot  raise  legitimate  reclamations  grounded  on  the 
duty  of  the  Peruvian  Government  to  secure  the  fulfillment  of  the  laws  and  defend  the 
national  property  against  the  enterprises  of  revolutionary  chiefs,  even  with  the  employ- 
ment of  force  ; 

"  That  if  a  nation  can,  sometimes,  remain  obliged,  in  consequence  of  agreements  or 
acts  of  a  government  de  facto,  this  is  only  when  the  nation  has  been  profited  by  them, 
or  when  there  is  a  question  of  reparation  for  acts  of  violence  or  despoil,  or,  finally,  when 
there  are  formal  stipulations  for  it  in  treaties  of  pacification  or  acts  of  amnesty;  but 
that  none  of  these  considerations  justify  the  pretensions  of  Mr.  Freraut; 

"That  the  contract  made  by  him  with  Rivas,  very  far  from  being  profitable  to  the 
Peruvian  Government,  had,  on  the  contrary,  the  object  and  effect  of  affording  resources 
to  his  enemies  ;  that  Mr.  Freraut  has  not  been  coacted  in  any  way,  but  that  he  volun- 
tarily contracted  with  the  government  de  facto  of  General  Vivanco;  and  that  the  govern, 
ment  of  General  Castilla  has  not  bound  itself  in  any  way  to  fulfil  the  obligations  con- 
tracted by  his  adversary  ; 

"Taking  in  consideration  that  the  decisions  of  the  European  Courts  of  Justice,  by  which 
it  has  been  denied  to  the  Government  of  Peru  the  restitution  of  the  cargoes  of  guano 
taken  away  in  violation  of  its  fiscal  regulations,  have  been  pronounced  under  very  dif- 
ferent circumstances  and  when  those  cargoes  had  already  been  introduced  in  Europe ; 
that,  besides,  these  decisions  have  been  grounded  on  the  principle  that  in  questions  of 
movable  property  possession  answers  for  title,  unless  it  is  lost  or  stolen  property  :  that 
in  Mr.  Freraut's  case  this  principle  has  no  application-] 


139 

"  The  Committee  is  of  opinion  that  Mr.  Fre>aut  has  no  right  to  claim  any  indemnity 
from  the  Peruvian  Government  for  the  seizure  of  his  ships  and  cargoes." 
I  have  given  my  approval  to  this  opinion  of  the  Committee  on  Litigous  Affaiis. 
Receive,  <fcc.,  <fec., 

(Signed)         WALEWSEY. 
(True  copy.) 

A.  HUET. 


VALPARAISO,  December  15th,  1857. 
Captain  STEPHEN  REYNOLDS, 

Bark  Georgiana, 

Iquique : 

Dear  Sir, — We  have  to  advise  you,  that  so  far,  we  have  been  unable  to  obtain  any  freight 
for  your  ship.  The  late  charters  since  our  last,  have  been  a  ship  of  400  tons,  at  £2  17s. 
6d.,  for  Hamburg.  Guano  in  the  bay  for  England,  at  £2  17s.  6d.  Offers  are  made  to 
load  guano  at  Cobija.  Some  charterers  are  offering  to  take  the  risk  of  the  Chincha  Is- 
lands, these  being  now  in  possession  of  the  revolutionary  party,  but  we  would  not  advise 
you  to  accept  such  a  charter,  although  the  Apurimac,  now  at  Iquique,  might  go  there. 
Under  these  circumstances,  it  would  be  better  for  you  to  proceed  to  Callao,  calling  at 
Arica,  unless  you  could  obtain  a  charter  at  Iquique. 

We  remain,  sir, 

Your  ob't  servants, 

ALSOP  &,  Co. 


DEPARTMENT  OF  FOREIGN  AFFAIRS  OF  PERU,  ) 
LIMA,  October  24th,  1860.  y 

(Circular  to  the  Diplomatic  Corps.) 

In  compliance  with  the  duty  imposed  on  my  Government  by  civilization,  and  the 
friendship  which  it  sincerely  cultivates  with  that  of  *  *  *  *  t 

I  have  the  honor  to  address  *  *  *  *  *  ,  for  the  pur- 

pose of  informing  him  of  the  occurrence,  deeply  to  be  regretted,  of  the  suspension  of 
diplomatic  relations  between  Peru  and  the  United  States  of  North  America,  which  has 
been  carried  into  effect  by  H.  E.  the  Envoy  Extraordinary  and  Minister  Plenipotentiary, 
Don  J.  Randolph  Clay,  soliciting  his  passports,  which  I  have  remitted  to  him.  I  must, 
at  the  same  time,  manifest  to  *******  the  reasons 
which  will  demonstrate  the  fact,  that  this  deplorable  occurrence  has  been  brought  about 
without  any  fault  on  the  part  of  Peru,  and  to  this  end  I  accompany  the  number  of  the 
official  periodical  in  which  the  notes  are  registered,  which  in  this  matter  the  Department 
has  exchanged  with  that  Minister  Plenipotentiary,  and  very  shortly  I  will  send  *  * 
*  *  *  another  publication  of  all  which  has  occurred  since  the  act  which  gave 
origin  to  this  unfortunate  business,  that  of  all  this  he  may  give  information  to  his  gov- 
ernment. 

I  shall  be  obliged  if  *  *  *  will  immediately 

take  cognizance  of  a  brief  resume  of  what  has  transpired  in  the  discussion. 


140 


A  national  vessel-of-war,  -which  was  cruising  on  the  southern  coast,  to  prevent  the 
depredations  of  guano  which  were  being  made  by  the  leader  of  a  rebellion  which  broke 
out  in  the  city  of  Arequipa,  took  as  prizes  the  American  merchant  vessels  Lizzie  Thomp- 
son and  Georgiana,  having  found  them  loading  guano  in  places  which  not  only  were  not 
designated  for  the  exportation  of  that  article,  but  which,  being  neither  principal  nor 
minor  ports  of  the  State,  access  to  them  was  prohibited  for  foreign  merchant  vessels. 
The  Regulations  of  Commerce,  which  are  laws  of  the  State,  and  the  rules  for  the  expor- 
tation of  guano,  which  are  also  laws,  and  other  orders  of  the  government,  prohibited, 
under  the  penalty  of  confiscation  of  the  vessel,  the  loading  of  said  article  at  the  deposits 
from  whence  it  was  taken  by  the  Lizzie  Thompson  and  the  Georgiana.  These  laws  and 
orders,  published  at  different  periods  for  their  respective  terms,  were  again  published  on 
account  of  the  rebellion  at  Arequipa,  and  also,  by  circular  notifications  to  the  Diplomatic 
Corps.  Nothing  was  wanting,  then,  to  prevent  the  application  of  the  penalties  sanctioned 
by  them,  in  regard  to  the  parties  infringing,  in  whatever  cases  might  occur,  and  this  was 
the  case  with  the  aforesaid  vessels. 

Further,  the  guano  loaded  by  these  vessels  had  been  sold  at  a  very  low  price  by  a 
military  chief  belonging  to  the  rebellion  at  Arequipa.  The  guano,  which  is  national  prop- 
erty, could  not  be  alienated  except  by  the  National  Government,  and  in  conformity  with 
the  laws  cited.  The  Government  had  already  so  stated  to  the  foreign  public  agents,  for 
the  better  security  of  their  rights,  although  the  notification  was  unnecessary,  and  no  in- 
formation to  the  contrary  had  been  received.  The  Lizzie  Thompson  and  Gcorgiana, 
therefore,  committed  a  depredation  in  taking  by  a  voluntary  contract  the  national  prop- 
erty from  the  hands  of  the  rebels,  who  could  not  under  any  pretext  dispose  of  it.  For 
so  flagrant  an  infraction  and  outrage  of  the  regulations  of  commerce,  and  of  those  for 
the  exportation  of  guano,  and  for  so  scandalous  a  fraud  upon  the  property  of  the  State, 
the  vessels  referred  to  were  tried  and  confiscated,  all  the  proceedings  prescribed  by  the 
laws  being  regarded  in  the  trial 

H.  E.  Mr.  Clay  made  no  observation  in  regard  to  the  form  of  the  trial,  but  made  re- 
clamation for  the  seizure  and  confiscation  of  the  vessels,  holding  that  the  leader  of  the 
rebellion  at  Arequipa  was  a  ruler  de  facto,  who  could  dispose  of  the  national  property 
within  his  reach,  and  that  the  government  de  facto  and  of  right  of  the  nation  was  at 
civil  war  with  that  leader.  Never  have  more  luminous  expositions  been  made  than  have 
been  produced  by  my  government  here  and  in  Washington,  in  proof  of  the  true  charac- 
ter of  rebellion  which  belonged  to  the  pretended  government  of  Arequipa,  (a  government 
which  was  not  recognized  either  implicitly  nor  explicitly  by  any  nation,)  its  incapacity 
to  alienate  the  national  property,  the  possession  of  all  its  rights  by  the  national  govern- 
ment, with  which  all  governments,  including  that  of  the  Union,  continued  to  treat  and 
communicate,  the  non-existence  of  a  civil  war  with  the  rebels,  and  the  legitimacy  of  the 
seizures,  even  in  case  an  intestine  war  had  existed. 

Unfortunately,  my  government,  in  the  extended  discussion  of  this  business,  has  been 
unable  to  convince  that  of  the  United  States,  that  the  indemnity  asked  by  the  owners, 
and  others  interested  in  the  Lizzie  Thompson  and  Georgiana,  is  not  due,  and  the  Cabinet 
at  Washington  has  tenaciously  persisted  in  claiming  a  large  sum  in  this  matter,  even 
going  so  far  as  to  making  intimations,  little  conforming  with  the  friendship  which  exists 
between  this  and  that  republic.  My  government  could  not  accede  to  the  recognition,  as 
was  demanded,  of  its  responsibility  for  the  seizure  of  these  vessels,  because  it  cannot  re- 
nounce rights  so  important  and  so  clear  as  those  belonging  to  it,  because  it  cannot  attack 
its  own  proper  sovereignty,  nnd  the  independence  of  the  judicial  power,  because  in 
acceding  to  the  demands  of  the  United  States,  they  would  establish  a  ruinous  principle 
for  all  governments,  including  that  of  North  America,  and  leave  the  national  property 
at  the  mercy  of  any  rebel,  who  was  pleased  to  call  himself  a  government  de  facto,  be- 
cause especially  the  revenue  of  the  guano  would  be  attacked  by  rebels,  who  would  take 
that  investiture,  for  the  sole  object  of  disposing  of  said  article,  and  because,  to  be  faith- 


ful  to  national  compromises,  it  must  guard,  as  it  guards,  with  particular  care,  the  preser- 
vation of  said  revenues,  hypothecated  for  the  payment  of  the  public  debt,  domestic  as 
well  as  foreign. 

From  the  tenacious  demands  of  the  Government  of  the  Union,  and  from  the  justice 
and  firm  denial  of  mine,  have  resulted,  therefore,  the  conflict  which  I  to-day  deplore. 
To  avoid  it,  no  means  have  been  spared,  and  they  have  gone  so  far  as  to  make  an  actual 
sacrifice  of  rights.  We  have  proposed  to  submit  the  question  to  the  arbitration  of  a 
third  power,  first  designating  that  of  Great  Britain,  and  afterwards  offering  to  conform 
with  any  selection  made  by  the  American  Cabinet.  We  have  consented  thus  to  leave  as 
doubtful,  and  to  the  arbitration  of  a  foreign  decision,  the  justice  which  we  firmly  believe 
is  in  our  favor.  The  Government  of  the  Union  declines  to  adopt  this  mode,  in  use 
among  all  nations  in  similar  cases,  and  which  it  should  adopt  if  it  is  convinced  of  having 
reason  and  right  on  its  side. 

Latterly,  H.  E.  Mr.  Clay  laid  before  my  government  a  proposition  that  all  reclamations 
of  American  citizens  against  Peru,  should  be  adjusted  by  a  mixed  commission  named  for 
the  purpose,  my  government  previously  declaring  itself  responsible  for  the  confiscation 
of  the  Lizzie  Thompson  and  Georgiana.  By  what  has  already  been  said,  it  will  be  seen 
that  my  government  could  not  assent  to  the  declaration  indicated.  H.  E.  Mr.  Clay  mod- 
ified his  proposition,  urging  that  the  indemnity  for  all  American  reclamations,  including 
that  of  these  vessels,  should  be  arranged  by  the  mixed  commission.  My  government 
declared  that  it  could  not,  even  by  implication,  submit  to  the  responsibility  in  question, 
and  this  is  what  H.  E.  Mr.  Clay  has  been  pleased  to  define  as  an  absolute  denial  on  the 
part  of  my  government  of  the  demands  of  his,  and  what  has  prompted  his  regretted 
withdrawal. 

The  Minister  of  the  Union  has  not  deemed  it  worth  while  to  consider  the  fact  that 
the  greater  part  of  his  demands  have  been  conceded,  by  their  submission  to  a  mixed 
commission,  important  powers  of  my  government  being  sacrificed  thereby,  and  in  that 
relative  to  the  Lizzie  Thompson  and  the  Georgiana,  no  absolute  denial  has  been  inter- 
posed, because  in  the  arbitration  proposed  by  my  government  this  demand  might  be 
allowed,  if  founded  in  justice. 

And  moreover,  in  regard  to  the  retirement  of  H.  E.  Mr.  Clay,  my  government  has 
earnestly  desired  him  not  to  carry  it  into  effect,  and  that  he  should  consult  the  Cabinet 
at  Washington,  setting  forth  the  truly  satisfactory  condition  of  the  question  with  whose 
solution  he  was  charged.  But  Mr.  Clay  has  decided  that  his  instructions  do  not  permit 
him  to  assume,  on  his  own  responsibility,  the  delay  of  a  few  days,  and  thought  it  more 
important  to  show  his  determination  in  this  matter  than  to  evince  that  his  government, 
reflecting  at  the  last  moment,  and  in  view  of  the  sacrifices  already  made  by  Peru,  would 
resolve  to  continue  cultivating  with  this  nation  the  friendly  relations  which  to  the  pres- 
ent time  have  been  maintained,  and  to  avoid  the  evils  which  a  misunderstanding  may 
cause  to  their  commerce  and  "that  of  Peru.  He  has  not  been  deterred  by  the  considera- 
tion of  the  estimate  which  the  world  will  place  upon  his  government,  sustaining  with 
tenacity  a  purely  pecuniary  demand  against  Peru,  while  the  question  is  more  than  that 
of  money ;  it  is  of  principles  of  vital  importance. 

The  civilized  governments,  and  especially  that  of  *****  * 
will  judge  if  in  this  grave  and  delicate  business,  Peru  has  not  maintained  the  principles 
of  justice,  and  practiced  those  of  international  law,  in  a  spirit  of  equity  and  harmony, 
and  if  my  government  is  not  free  from  the  imputed  responsibility  of  the  suspension 
of  diplomatic  relations,  which  H.  E.  Mr.  Clay  has  deemed  it  proper  to  put  in  practice. 

I  have  the  honor  to  reiterate  to  *****  the  sentiments  of 
my  distinguished  consideration  and  regard. 

(Signed)  JOSE  FABIO  MELOAE. 


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ITY  OF  CALIFORNIA  ^JJ^ARY 


